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Since the start of the 20th century, artists -- often referred to as creators -- have squared off against the hardware and software distributors -- less frequently referred to as inventors.

Creators see inventors as predatory. They invariably seek to erect barriers to innovation. The phonograph inventors were sued by representatives of the music community. The

manufacturer of copier machines was sued by a coalition representing literary interests. The creators sued, claiming the inventors would destroy their livelihood by eliminating the need to deal directly with them. In other words creators claimed that their creations were either being used unfairly (without payment) or would not get used at all.

Inventors responded that they were not using the work of the creators. Instead, they were making a product that was ultimately pro-creator because the public's value and use of these inventions would actually makes the work of the creators more valuable. Moreover, if the inventions were being used improperly it isn't the inventors fault; it's the consumer or purchaser that should be singled out.

Perhaps it demonstrates some cosmic difference between left brain and right brain approaches that the law has tended to side with the inventors over the neo-Luddite creators. This tilt has insured that dramatic technological advances could occur while simultaneously protecting creative impulses. Unencumbered innovation aids and rewards creators in a way that unrestricted creation alone never can for either.

Sure enough, creators soon learned that the phonograph stimulated interest and demand in music in a way that attending concerts in a music hall never could. They also came to realize that copiers and libraries both encourage more reading and book publishing than private book ownership alone would.

And yet even as the creators have prospered in this environment they remain convinced that somehow their impulse to limit or restrict innovation would be better for themselves and the U.S. economy. Even as creators and the inventors work together, like the English workers of the 17th century afraid of the Industrial Revolution, creators lash out at innovation and technology when they think the timing is right.

Remember back to 1984 and the landmark Supreme Court case about home video recording. While everyone now knows VCR's are legitimate products to sell and own, we've forgotten the claims made by the "content providers" at the time. They said that

these must be banished because as videocassette viewing skyrocketed movie sales would decline and television commercial revenue would disappear.

Jack Valenti the former head of the Motion Picture Association so colorfully said, "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." Not withstanding the overheated rhetoric, once again, the law sided with the inventors. But just barely. In Sony Corporation of America v. Universal City Studios, Inc. the Supreme Court in a 5-4 decision sided with inventors over creators holding that a distributor cannot be held liable for end users' infringement so long as the tool is capable of substantial noninfringing uses.

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