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The U.S. Constitution guarantees to authors, inventors and other creative artists that the fruits of their ingenuity and labor will be protected as their property and may not be taken from them. See Art. I, � 8, cl. 8. The founders took the extraordinary step of enshrining copyright and patent protection in the Constitution because they believed that providing our creative citizens with this property-based incentive to convert their ideas into innovations and artistic works, and to bring those works into the marketplace without fear that others would appropriate and exploit their work, would be the best way to stimulate creativity and provide all citizens with the benefits of the creative arts. These fundamental concepts have repeatedly been endorsed and implemented by Congress in the form of copyright and patent laws. The framers’ constitutional vision regarding copyrights and patents has been immensely successful. Early in its history, America became an attractive and welcoming environment for creative individuals, and the United States, for more than two centuries, has been the most successful, creative and inventive economy in the world. Precisely as contemplated, the benefits of this robust creativity has spread to all citizens as America’s economy has thrived, commerce and jobs have been stimulated and Americans have enjoyed the fruits of innovation, the inventive and creative genius of its citizens. To this day, America leads the world in its intellectual output. Intellectual property in the form of books, movies, music, software and technological works continue to constitute an immense segment of the world’s most productive economy. We may import many of the products we use, but we export ideas, art creativity and innovative technology. The continued vitality of our creative citizens, and their contribution to our rich economy, depends, as it always has, on the continued fulfillment of our constitutional promise to authors and inventors that the fruits of their creativity will belong to them, and that they may place the products of their endeavors into the stream of commerce without fear that they will be stolen from them. GREATEST ONGOING THEFT Unfortunately, enterprises have now sprung into existence to exploit and appropriate the work of our creative community, and to profit from the systematic and cost-free reproduction of copyrighted music, movies and other artistic creations. Indeed, these enterprises have engaged in, for profit and on a massive and widespread basis, the greatest ongoing theft of intellectual property that the world has ever seen. The Grokster-type file-sharing operations enable anyone to obtain thousands of copyrighted works without paying for them. These enterprises were launched with the singular purpose of enabling and profiting from the violation of copyright laws. The Grokster-style enterprises are created for the purpose of taking for nothing what one would otherwise purchase. More than 90 percent of the use of the Grokster software is to capture unlawfully copyrighted property — and therefore to take from the creators of this music and these movies the benefit of the property that they have invested their capital and labor in order to create. Not only do the Grokster-type enterprises violate the rights of artists, they convert hundreds of thousands of our citizens, especially our children, into accomplices in the theft. Many of these enterprises actually tell America’s youngsters that it is perfectly legal to download a copyrighted song or movie, or permit someone else to copy a work that has been copied onto that child’s computer. We most assuredly would not tolerate a process that taught our children not only how to shoplift, but that it was perfectly fine to do so. We cannot allow that same unlawful conduct to proliferate simply because it is done with a computer. A major threat to our creative economy is pirated CDs and DVDs created in other nations. Our government is working to stop that process abroad by seeking the help of the governments in which that piracy occurs. But we can hardly persuade other nations to stop piracy if we continue to condone it at home. Stopping Grokster-like businesses is no threat to innovation, any more than stopping identity theft or credit card fraud stifles innovation. The creators of our Constitution and our elected representatives in Congress for more than 200 years have known that the failure to protect against systematic theft of creative works is the greatest threat to innovation, and that stopping the theft of property and restoring the rule of law for intellectual property is the best — and the only — way to encourage innovation. We ask only the same protection for the creative work that we guarantee to every other property owner in this country — respect and protection for the fruits of one’s labor and enterprise. Theodore B. Olson, the former solicitor general of the United States and a partner at Gibson, Dunn & Crutcher, represents the Recording Industry Association of America and the Motion Picture Association of America Inc., and filed a brief in the Grokster case on behalf of Defenders of Property Rights.

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