In unanimously (!) over-ruling a lower court decision that absolved Grokster of legally punishable complicity in illegal file-sharing facilitated by its web-based software, the U. S. Supreme Court simultaneously 1) made an important legal/ethical distinction 2) threw one more dam in front of the seemingly unstoppable technological tide threatening to sweep away the value of copyrighted music and films and 3) opened a philosophical can of worms that may have some startling consequences in the long term.

Grokster’s software was designed to facilitate illicit file-sharing, and illicit file sharing is stealing. The Scoreboard has discussed the ethical issues involved several times over the past year, and nothing has changed: the fact that stealing music and, increasingly, films off the internet is easy, hard to trace, fun, economical, widely accepted and common doesn’t change the fact that it’s wrong. The companies like Grokster that facilitate this dishonest activity work over-time to supplement and bolster the lame rationalizations of the file-stealers; Grokster’s management responded to the Supreme Court rebuke by comparing their fight with the entertainment business to “David and Goliath,” a cynical use of Biblical imagery if there ever was one. David, you will recall, was not trying to steal Goliath’s creative products without paying for them. Yes, Grokster is a lot smaller than Sony and Warner, but while size may matter, lack of it doesn’t confer automatic virtue. I can just hear those HIV viruses proclaiming that their battle to continue killing human beings is like “David and Goliath.”

The lower courts relied on the line of cases that rejected an earlier movie industry bid to hold the manufacturers of videotape recorders responsible for the illegal copying and distribution of VHS tapes. But there’s a difference: the videotape recorders had very legal legitimate uses, such as taping TV shows for later viewing. The manufacturers’ argument that they weren’t responsible for their product’s misuse was reasonable. Not in Grokster’s case, however. Their software has one use, it’s an illegal and unethical one, they know it and encourage it. Like the makers of bongs, “Fuzz-busters,” and “Whizzinators” (a device that allows athletes and others to foil urine tests for illicit drug use), Grokster profits by helping people in break the law. The company is as culpable as the scofflaws they market to; they are just more deceitful about it.

Whether the huge can of worms has been opened depends on whether the decision’s logic will remain in the realm of technology. Gun manufacturers, for example, also make the Grokster argument: “Hey, we just make the thing. We can’t be held responsible if people break the law with it.” How many legitimate and legal purposes does an assault weapon have, I wonder? Could the Grokster principle articulated in MGM Studios Inc. v. Grokster Ltd. be used to overcome First Amendment protection afforded to websites that help people make bombs, molest children, mix poisons, or track down and kill undercover Federal agents?

It would be ironic if the Supreme Court’s determination that companies are responsible for the illicit activities their products were designed for ended up biting manufacturers of other sinister products, because it is unlikely to slow down file-sharing. New, harder to trace file-sharing technology is already on the way; the law can’t keep up with the innovative file-stealers . Incredibly, an editorial in USA Today blames

the record and movie industry for not capitulating and simply accepting the fact that their products are going to be swiped, one way or the other: “Ultimately, the rapid advancement of technology gives creators of the entertainment industry no real option beyond pricing their products attractively and making them easily available. By doing this, they may succeed in convincing most people to play by the rules.”

Someone should tell the editorial staff at USA Today that it’s awfully hard to compete with “free.” When you have to “convince” a population to “play by the rules” (a.k.a. “not steal”), the battle is indeed lost, but not the battle USA Today seems to be talking about. The battle that matters is the one over basic ethical standards. Everyone needs to stop making excuses for Grokster, the next generation of Groksters, and the file-stealers they champion. Call them what they are…criminals…and treat them as such. Don’t admit them to college, don’t let them into business schools or law schools. Make it absolutely, crystal clear that what they do is unacceptable and wrong.

Because it is.

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