In decisions announced this week, the US Supreme Court dealt a tepid defeat to America's theocrats, while awarding two resounding victories to its plutocrats. The 5-4 decision against the display of the Ten Commandments in Kentucky courtrooms grabbed the top headlines, and it was nice to see that the separation of Church and State still means something (although what exactly it means in light of the 5-4 decision in favor of Texas's Ten Commandments monument is not entirely clear). But two decisions affecting technology — a unanimous decision finding Grokster liable for users' copyright infringement and a 6-3 decision declaring cable companies exempt from the common-carrier laws that affect telephone lines — are probably more important, and more worrying. To be honest, the Ten Commandments decisions are largely symbolic: hanging or not hanging a piece of paper on the courtroom wall is not going to change anyone's life. But the other two decisions will have far-reaching effects, stifling technological innovation on the one hand and competition in the tech sector on the other. They are good decisions if you are a media giant like Time Warner, but they are bad for just about everyone else. The cable decision is essentially a grant of monopoly to existing cable providers, allowing them to continue charging steep rates for broadband Internet access. The lack of competition will be most pronounced in rural areas, like Eastern Kentucky, exacerbating the existing Digital Divide and making it even harder for these regions to keep up with denser, wealthier areas.
Even more baffling, though, is the Grokster case. If the standard set here had been applied 20 years ago, we wouldn't have a World Wide Web (what is
http:// anyway but a dastardly scheme for copying digital files from one computer to another). And if you hold Grokster liable for piracy over its network, why not hold Apple and Microsoft and Sony and Panasonic liable too, since it is their software and hardware that gets used to actually do the pirating? Taking it a step further, is Xerox liable because people routinely use their machines to make illegal copies of printed material? Are the (competition-exempt) cable and telephone companies liable for the illegal content that frequently moves across their networks? Auto and gun manufacturers for the use of their products in criminal activity? About the only difference I can see is that in those other cases, the offending company(ies) are Big, while Grokster is comparatively Little. That's a very American (if not a very democratic) approach: the more powerful you are, the more protected you are, and the less responsibility you have to take for the ramifications of your actions.
And then there's the decision in favor of towns' using eminent domain to claim land for private development. At least one person is making good use of the last decision: Logan Darrow Clements has filed for the condemnation of David Souter's home in New Hampshire so that he may convert it into the Lost Liberty Hotel. Don't complain, Justice Souter. It will be serving the public good!