BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield. This week the United States Supreme Court heard the case of MGM versus Grokster. MGM represented the interests of both the motion picture industry and the major music labels. Grokster stood in for a number of peer to peer software manufacturers - software that allows anyone to freely trade material on the internet. The entertainment industries say the software makers are arming pirates. The software makers charge the entertainment industry with trying to strangle technological innovation. It's not a new fight. Twenty one years ago, the motion picture industry argued before the Supreme Court that another technological innovation was going to be its downfall.

CORRESPONDENT: Today, a lawyer for Sony told the Supreme Court that taping programs to watch them later should not be considered a copyrights violation. Justices Berger and O'Connor asked if someone's not home at seven and watches at eleven, what's the harm? Movie lawyer Steven Croft replied it could cut into sales of rental cassettes and reruns of the program.

BOB GARFIELD: That's NBC News in 1983, when the film industry sued to stop sales of Sony's Betamax Machine, the earliest VCR. It's a case that Fred von Lohmann, senior attorney for the electronic frontier foundation, who represented the software makers, believes directly parallels the case he made in front of the Supreme Court this week.

FRED VON LOHMANN: Actually, the case began back in 1976, when two major motion picture studios sued Sony. They said Sony should be held responsible for the copyright infringements made possible by the Betamax VCR, the first VCR for the home, just as they're arguing today that Grokster and Streamcast, who make the peer to peer file sharing software, should be held responsible for infringements that this new technology makes possible. The Supreme Court in 1984, finally gave the first clear answer. They said so long as your technology is capable of substantial non-infringing uses - in other words, so long as it has good uses as well as ill - it's legal to sell it; it's legal to develop it. And, thanks to that ruling, the engineers who have brought us things like the iPod and the TiVo and the personal computer and the internet - even Silly Putty, which, after all, can be used to lift text off of newsprint - they all have taken a great deal of comfort in that clear rule that has, for the most part, kept them out of court.

BOB GARFIELD: You might also have mentioned the Xerox Machine, which is not exactly new technology, but can also be used and is used every day for illegal copyright infringement purposes, but it has other functions as well. Did it occur to you to just wheel a Xerox Machine into the court?

FRED VON LOHMANN: Well, at least metaphorically speaking, one of the justices did it for us. Justice Breyer asked: What about the Xerox Machine? And, in what I thought was an interesting quip, he said "After all, going all the way back to the Gutenberg printing press, there were a lot of monks out there that really weren't happy about that invention, either." This is really part of a much longer historical set of fights between new technologies and the entertainment industry, going back at least to the player piano at the dawn of the 20th Century. No less a figure than John Philip Sousa, the famous American composer, said "The player piano will be the end of music in America." Nobody would ever buy sheet music ever again, because from that point forward, you could just have a player piano instead. The interesting thing is, although the entertainment industry has attacked the player piano, broadcast radio, cable television, the VCR, and more recently, the MP3 player, in every single case, the new technology that was attacked ended up making more money for the very entertainment industry that had attacked it in the outset. There's no reason to think the internet is going to be the first technology in a hundred years which doesn't create new markets for the entertainment industry.

BOB GARFIELD: So, this week you had your day in court. How did it go?

FRED VON LOHMANN: Well, I think the justices asked all the questions we wanted them to ask. It was quite striking. Justice Souter, who I understand still writes his opinions longhand on yellow legal pads, started out the day asking a question about - well, what about the guy in the garage who invents the iPod? How do we make sure he's protected? So, when Justice Souter starts with a question like that, in my view, he understood that innovation is really what's at stake.

BOB GARFIELD: We're going to speak next to Dan Glickman, the president of the Motion Picture Association of America. Now, the MPAA claims that peer to peer software is used primarily for pirating movies and music, and certainly the record industry will claim that the increase in the use of peer to peer file sharing networks has tracked with a dramatic drop in their CD sales.

FRED VON LOHMANN: I think it's not at all clear that the CD sales can all be laid at the feet of peer to peer. The music industry has a host of problems, including, of course, their problem getting on to radio, the consolidation of retail. Frankly, I think peer to peer file sharing has become a convenient scapegoat for a business that has a lot of problems. But, all of that being said, CD sales actually increased last year, despite all the file sharing and all of the complaints. And when it comes to Mr. Glickman, the motion picture studios, they are actually enjoying their most profitable years in world history, right now, and for each of the past five years. So, it is far too quick to say these technologies are going to devastate the entertainment industry. After all, that's exactly the mantra they came up with during the fight over the VCR, and Jack Valenti, who was then head of the Motion Picture Studios, famously said that the VCR was to the movie studio as the Boston Strangler was to a woman alone. And, of course, as people who have been paying attention will no doubt know, it's the home video market that the VCR made possible that became the biggest money-making bonanza the movie industry had ever seen.

BOB GARFIELD: The music and film industries have also been suing individuals for downloading material illegally. How are those cases going?

FRED VON LOHMANN: Well, it appears the recording industry is very serious about suing individuals and the motion picture studios are beginning to get into that game as well. I think that's an unfortunate strategy. After all, it doesn't take a real genius to tell you that suing your own customers is not a business model. So, I do think in the end they're going to have to recognize that they need to lure customers. It's about the carrot; not about the stick here.

BOB GARFIELD: All right, Fred. Well, thank you very much.

FRED VON LOHMANN: Thank you.

BOB GARFIELD: Fred von Lohmann is senior staff attorney for the Electronic Frontier Foundation.

BOB GARFIELD: Former agriculture secretary Dan Glickman is now the president and CEO of the Motion Picture Association of America. Mr. Secretary, welcome to the show.

DAN GLICKMAN: Thank you.

BOB GARFIELD: You have made the piracy issue the defining one in your first six months of your term. How do you think things went in front of the high court this week?

DAN GLICKMAN: I think they went pretty well. The justices, at least eight of them, asked tough questions of both our counsel and the opposition counsel. But two or three of the justices said that the specific rule of the Sony Betamax case was not necessarily going to govern their decisions. A couple of justices talked about the whole issue of inducement - that not only that you have a system that allows theft to take place but that you actively induce that. The court, I think, is particularly gifted at balancing the interests. They don't want to stop technology, that's a truism. They also don't want to promote lawlessness. That's a truism.

BOB GARFIELD: Now, our previous guest, Fred von Lohmann, argued against you in court this week. His claim is that each piece of new technology actually benefits the industry that initially seeks to quash it - a VCR maybe being Exhibit A.

DAN GLICKMAN: The VCR wasn't based on a business model encouraging people to copy illegally. Yes, granted, you could do some of that there. But that wasn't the reason why it existed. This technology is based upon encouraging people to illegally infringe copyright material. I mean it's to take movies and music for free.

BOB GARFIELD: However, to get rid of peer to peer network technology would also, for example, outlaw bit torrent, which enables anyone with a large video file to upload it, which would stop the video revolution on the internet, you know, more or less overnight.

DAN GLICKMAN: No, none of this would automatically do that. You can't extrapolate to all internet issues or all peer to peer, because it's not accurate. The other models you talked about may or may not be based on theft. The issue is: are the people who write the music, who make the books, the software in the movies, are they compensated for their works? And, you know, our copyright law, starting with our constitutional system, was built on the fact that people would be compensated for creating things.

BOB GARFIELD: It's a tough situation. As an owner myself of my own intellectual property - not very valuable, but nonetheless, I'm the owner of it, and I get steamed when someone infringes on it. But there's also the question of technology marching on.

DAN GLICKMAN: Sure.

BOB GARFIELD: What happens if the court comes back and rules - well, we're sorry, movie industry, but technology must march on.

DAN GLICKMAN: What we hope is the court strikes a balance here, and I think that's what they'll do. We, in the movie industry, and I think in the music industry as well, are moving ahead with technology that will provide reasonable cost legal, hassle-free ways to get content from the internet, and there are lots of ways to do it. In our industry we have services like Movielink and CinemaNow. Netflix is now doing this. I suspect you're going to see a whole array of additional services, regardless of what the court does.

BOB GARFIELD: Now, I understand that we're talking about theft here. But I also see that the movie industry has been thriving in the past five years, when piracy has been at its historical zenith. Is it possible that the criminals are actually, in a back door way, helping you by sampling your product for those who otherwise would not buy it and giving them an appetite for more Hollywood, all the time?

DAN GLICKMAN: I don't think it works that way. In the first place, our theatrical movies - you know, the movies you go to the movie theaters - have actually been pretty flat over the last few years. We estimate that physical piracy - the optical discs on the street that you see - cost us somewhere around three and a half billion dollars a year. We're currently doing a look see to determine the absolute effect of internet piracy. But, with technology changing, with broadband width becoming larger and larger, it is likely that this will have a dramatic effect on movies in the future. Right now, a lot of folks don't want to spend the time to download a two hour movie. But if you could do that in a minute, it would be a lot more attractive. And that's what's probably going to come down the pike soon.

BOB GARFIELD: You came from the Midwest. You're from Kansas, which is flyover country in a world where cultural values have become a very important currency. There seems to be a great rift between those in the red states and the blue, blah, blah, blah. Tell me about how that affects your membership. I'm thinking particularly of the movie ratings imposed in order to stave off interference from the government.

DAN GLICKMAN: Well, the movie rating system works very well. I support it strongly. If you look at the top five movies last year, four of 'em were PG or PG-13. Only one was an R, and that movie was The Passion of the Christ. So, it's clear that the movie industry is making more and more family entertainment films, which the American people find very, very attractive right now.

BOB GARFIELD: What about ratings creep? I've sat in films that were rated PG-13 and seen material that when I was 13, I would have hidden under my bed from my mother.

DAN GLICKMAN: I don't think there's been a ratings creep as much as what I call "societal creep." We tolerate things today in American society that 50 years ago we would have thought was, you know, obscene behavior. Now, at the same time, the movie rating system wasn't written on Mount Sinai. It doesn't mean that we can't continue to look at it periodically to see if it needs to be tweaked.

BOB GARFIELD: I saw, in one of the profiles of you, that you're already conscious about the chances of appearing before a batrillion people on the Academy Awards broadcast in your new role. How's the audition been going so far?

DAN GLICKMAN: I haven't received any inquiries yet, but where there's life, there's hope.

BOB GARFIELD: Well, Dan Glickman, thank you very much.

DAN GLICKMAN: Okay. Glad to be with you.

BOB GARFIELD: Dan Glickman, former secretary of agriculture, is president and CEO of the Motion Picture Association of America. [MUSIC]