Via Boing Boing comes an amicus brief in the MGM v. Grokster case from the Free Software Foundation.

The first lines struck me immediately:

At the heart of Petitioners’ argument is an arrogant and unreasonable claim -- even if made to the legislature empowered to determine such a general issue of social policy -- that the Internet must be designed for the convenience of their business model, and to the extent that its design reflects other concerns, the Internet should be illegal.

This is what I've been saying all along: that content providers want a business model that is convenient for them, and if they have to choose between developing a new one or forcing new technology to conform to the standards of the old one, they will choose the latter.

When the ability to "separate" infringing from non-infringing communications is within the realm of technological possibility, even if only through one possible network design, a centralized server-client architecture, that route must be chosen. Failure to adopt that technical architecture by software designers creating network protocols and applications establishes secondary liability for later acts of infringement of which the technical designers were unaware and over which they had no control.

A similar argument was made by the computer science professors, viz., that a network is designed with efficiency in mind, not ability to break the law. P2P networks were used for file-sharing because they handled large loads well and didn't require centralized servers (thus, less overhead). Petitioners suggest that since the designers of file-sharing software did not use a client-server network -- which would be able to filter infringing content -- then that software must be infringing because it was not designed using a network architecture that could prevent infringement. The problem here is that we have no idea what the intent of the software designers was. And most software designers will strive for efficiency without even considering other implications.

FSF later notes that petitioners are seeking government assistance for "an unprecedented and unwarranted extension of their monopolies."

This Court has consistently held that copyright holders do not have unlimited power to control all or even most uses and distributions of their works. Extension of control beyond the limits set by the distinction between expressions and ideas, and the principle of fair use, is constitutionally prohibited, as this Court has repeatedly taught.

Thus petitioners do not have the ability to control every use of their works, since the purpose of copyright law in the first place is "the general public good."

FSF concludes that decisions about changing copyright law to reflect new technological innovations should be made by Congress, not the judidicary. Although if the DMCA and Orrin Hatch's loathsome Inducement of Infringement of Copyright Act are any indication of what Congress will offer, I'd rather take my chances with the Supreme Court. At least they're not taking money from MPAA and RIAA.