It was like a pilgrimage, only instead of Mecca we had the Supreme Court of the United States. And instead of wandering far from home to worship, we did it to witness what our nation calls justice.
The case before the Supreme Court on March 29 was MGM v. Grokster. It marked the culmination of a suit brought several years ago by MGM and nearly two dozen other entertainment conglomerates against two small software companies, StreamCast and Grokster, that distribute peer-to-peer file-sharing software. But the question before the justices was not about whether downloading copyrighted music and movies should be legal. It was about whether MGM could sue a company like StreamCast (maker of Morpheus) because the people using its product were infringing copyright.
Along with dozens of people from all over the country, I flew out to Washington, D.C., to demonstrate that we wanted to protect innovators against corporate giants. We wanted a future in which peer-to-peer tech wasn't demonized, where geeks weren't liable for what other people did with their inventions.
We also wanted some pizza delivered to the Supreme Court steps, goddammit. Around 9 p.m. on Grokster eve, after smoothing out tarps and unrolling our sleeping bags, the 30-odd people in line for public seats in the courthouse were hungry. Seth, who had organized many of the campers on an e-mail list, called a local pizza joint. As I chatted with a couple of ex-Nader activists and talked policy with two wonks from the Center for Democracy and Technology, I could hear Seth insisting, "We're at the Supreme Court, on the steps -- yes, near the Capitol. We're at 1 First St. Yes, really. That's where the Supreme Court is."
There's free WiFi at the courthouse, so a lot of people were blogging. As I drifted off to sleep in my subzero sleeping bag, I could hear laughter up and down the line, mingled with snatches of conversations about copyright licensing, cable regulation, and pirate ships. A gaggle of public interest attorneys showed up around 4 a.m. and watched Life of Brian on somebody's laptop until the batteries died.
Nobody from the entertainment industry waited with us for 14 hours in the cold, on the pebbly sidewalk, with a 30 percent chance of rain. Instead, companies paid for "line-sitters," mostly homeless people who sat miserably in rickety chairs. They called their employers "worms." Mako, who had taken the bus from New York, showed up in the early morning and offered to buy out one particularly cold and unhappy line-sitter, who obligingly took Mako's $50 and turned an entertainment-industry worm's spot into a space for an activist. At 7 a.m., there was a massive line-sitter defection -- dozens of them left without waiting for their worms. And that was how a bunch of Ed Felten's students from Princeton University got a chance to scoot up in line and be admitted to the Grokster argument.
Around 8 a.m., after we'd gotten official line numbers, we raced back to our hotel room to drop off the camping gear and change into suits. I returned just in time to see Jack Valenti heading into court. "Hey, wouldn't it be cool if he'd sign this Betamax tape?" Seth asked, waving an old cartridge he'd brought in honor of the 1984 Betamax decision that's the main precedent for Grokster. "Yes!" I cried and chased after the bemused Valenti until he graciously agreed to autograph the faded label. Don't believe me? Chris took pictures. They're all over the blogosphere by now.
At the Supreme Court, the public comes last. Although we were the first to arrive, our line wasn't waved into the courthouse until after the attorneys had gone in, after the "guests" had gone in, after the press had gone in, and after a seemingly gratuitous wait. In the end, only about 30 members of the public were admitted to the argument (I was number 20). Nearly 100 people were turned away, left to mingle with the rowdy "Save Betamax" protesters who carried signs saying things like "Don't stop innovation" and "Keep your hands off my iPod."
As for what happened during the argument, you can read about that on the internet. Yes, it was glorious and strange to hear Justice David Souter use the word iPod in a sentence, and to hear Antonin Scalia demanding to know more about Napster. And I'm happy to report that while Clarence Thomas didn't say a word, he wasn't sleeping.
The case will be decided in late June or early July. Was my pilgrimage worth it? Of course. Not for the thing itself -- the procedural conventions of lawyerly argument, the obligatory media swarm - but rather for the faith I found in those who waited. We are cynical and pessimistic, to be sure, but we still believe. And we journeyed to the capital because we haven't entirely lost hope for this nation, which promises liberty and justice for all.