The Argument for P2P – MGM vs. Grokster before the Supreme Court

This excerpted from the March 29th transcript of the oral arguments in MGM vs. Grokster between Richard Taranto Esq, attorney representing Grokster, et. al. and Justice Anthony Scalia.

MR. TARANTO:

Let me say a few words about what the record says about legitimate activities. Altnet is a company — they say that they have distributed, on peer-to-peer systems, hundreds of thousands of
authorized songs, and, they say, millions of pieces of video games, leading to sales. This is not a trivial
number. JIVE, speaks about 250,000 peer-to-peer downloads of a music video. The Internet archive,
which is talked about in the record, and as you now look at what they are on their Website, now lists some several
hundred musical artists with 20,000 recordings which are being put out there for peer-to-peer distribution. The
Creative Commons is licensing all kinds of things for authorized public distribution. There are musical bands —

JUSTICE SCALIA: Because, I gather, that some artists don’t make money from the records, but make money from the
popularity that draws fans to their concerts…  So they’re willing to give away the records for free.

MR. TARANTO: — My understanding is “some” is a great understatement, yes.  The bands which have authorized their live concert
recordings to be traded among — on — to be traded. The GigAmerica business is in the business of compiling musical recordings and other things for authorized distribution. The world of
music distribution and video distribution and movie-trailer distribution and, in small instances now, text
distribution, but growing, is changing and making use of this extremely innovative, low-cost tool. The great innovation
of this tool of communication ….

The great virtue of peer-to-peer decentralized software is that it doesn’t require anybody to put stuff onto a
server and then bear the cost of bandwidth, of being charged by the Internet service provider when a million people
suddenly want it. It automatically scales. It — the more people who want it, the more people will have it, because it
will be out there on a million computers. That is an inherent distributional economy, together with the autonomy of the
user, rather than having a kind of Mother-may-I system, with having to check every communication through some third
party to say, “Am I authorized to make this communication,” that are the virtues of this system and that make it
clearly capable of growing the already large hundreds of thousands, even millions, of uses that this — that these
pieces of software already enable people to do.

One final word. We’re not disputing that there are, in an industry-wide way, a set of important policy
issues here, though there’s nothing in the record about what self-help measures — digital-rights management,
encryption, other things — there’s nothing in the record what — about that. There’s nothing in the record about what
kinds of real industry harm is being done by this. Right? This is all citations to Websites in their brief. These are
classic questions of predictive judgement, industry-wide judgements that Congress should make to decide whether there
is a problem in need of solution, and what solutions ought to be considered, whether changing the rule would have a
overriding bad effect on other industries.

Read the complete and lengthy transcript here.  Film at 11.

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