As the Supremes prepare to take on the Grokster case, with commenters predicting terrible doom whichever way the wind blows, let me offer a dissenting view.

The Grokster case is irrelevant. The studios have already lost.

The court cannot make file transfers illegal. There are too many ways to transfer them. They can be transferred in e-mail attachments. They can be transferred through Instant Messaging. They can be transferred via MMS.

File transfers are basic to networking. Without the ability to transfer files we're down to typing.

Here's a compromise that rings true to me.

Look at the business model of the technology's sponsor.

Grokster would lose under this test, because it is selling ads against the transfer of copyrighted material, and it could not survive without the income that goes against those ads.

BitTorrent, on the other hand, would succeed under this model. BitTorrent is not advertising against its file transfers.

Of course, this test brings up another reason why the whole case is increasingly irrelevant.

That is, it's all about proprietary software, and proprietary software models.

Grokster is proprietary software. It's closed source.

We live in an increasingly open source world.

This reality is unlikely to be argued in court this week, so the arguments themselves will be irrelevant.

Consider the implications in either case.

• If Grokster wins, the war will go on, with studios and music companies filing lawsuits against individuals and looking for technical fixes that "break" Grokster, and similar programs.
  
• If the studios win everything goes underground, and the war goes on with greater urgency.
  

The best reason to expect nothing to happen is because nothing is happening regarding the so-called "Red Hat Clones." Red Hat charges $2,500/copy for its enterprise software. A bunch of companies go around copying it and giving it away. Red Hat survives.

So will the movie business, and the music business, and the software business, no matter who wins in court.

The case is irrelevant.