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P2P goes to the US Supreme Court |
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Monday, 28 March 2005 |
P2P goes to the US Supreme Court
Wired
News
When Grokster and MGM Studios square off Tuesday in front of the Supreme Court,
the lawyers will argue copyright law. But the court's decision will affect how
people use entertainment and share information.
The highly anticipated case, MGM Studios v. Grokster, pits all the major movie
studios and record labels against Grokster and StreamCast Networks, two
operators of file-sharing services.
The entertainment companies petitioned the Supreme Court to take the case after
the 9th U.S. Circuit Court of Appeals ruled in August that file-sharing
companies are not liable for their users' copyright infringement. The decision
upheld a lower-court ruling from April 2003.
The appeals court based its ruling on the 1984 Supreme Court Sony Betamax case.
In that case, the court ruled Sony's videotape recorder was a legal device
because it was "capable of substantial non-infringing uses," even though it
could be used to violate copyrights. The case is credited with leading to a
lucrative home-video and DVD market for the entertainment companies. The
decision also provided innovators with a benchmark to support the development of
new products.
A number of emerging-technology companies are among the Grokster supporters who
have filed a friend-of-the-court brief in the case, concerned that a ruling for
the entertainment companies could stifle innovation and harm their businesses.
"The large content players ... are trying to shift the enforcement burden to the
tools manufacturers," said Scott Rafer, CEO of Feedster, a blog search engine.
"That directly impacts my business."
Rafer said Feedster already removes copyright material from its site when it
receives Digital Millennium Copyright Act takedown notices from copyright
holders.
"If we have to look (at) every piece of inbound stuff that comes in for
copyright materials, then most of the internet tools that we use every day would
be illegal," Rafer said.
"All these internet technologies share this common mass-copying capability:
e-mail, web servers, web browsers, basic hard drives," said Jason Schultz, an
attorney with the Electronic Frontier Foundation, which represents StreamCast
Networks. "There's no principal distinction between (P2P) and other internet
technologies in the way it's designed.
"I think the court will find it very, very difficult -- if not impossible -- to
draw any distinctions between the programs in front of them in this case and
other internet communication programs," he said.
Also signing on to the emerging technologies' amicus brief are companies like
Kaleidescape, which markets a product that permits people to store personal DVDs
on a secure home server and access them from any room in the house. And Slim
Devices, maker of the Squeezebox that people can use to stream music from a home
computer to a stereo, has signed on.
But defenders on the entertainment side say the 9th Circuit was wrong, and the
peer-to-peer companies should be held liable for the massive copyright
infringement occurring on their networks.
"The principal use of the Betamax was for time shifting, and that time shifting
is a fair use," said Fritz Attaway, executive vice president and Washington
general counsel for the Motion Picture Association of America. "In the Grokster
case, the opposite is true. The overwhelming use of Grokster is for infringing
purposes."
William Hart, an attorney who represents the National Academy of Recording Arts
& Sciences, best known for its Grammy Awards, said the vast majority of people
who use file-sharing sites are coming to "lift a copy of a commercial recording
and make a copy for (themselves). If that's really the use to (which) the device
is put, and that's really why it's attracting people and that's why it's
attracting the advertisers, then that has to be factored in to the analysis of
whether the device is really an item that is infringement-neutral."
Still, while some artists oppose file sharing, others believe the technology is
an important tool they can use to reach new audiences. About 20 artists,
including Heart, Chuck D, DJ Spooky and Brian Eno, filed a separate
friend-of-the-court brief in support of the P2P services.
"Copyright law as it's being practiced and lived are two different things," said
Paul Miller, also known as DJ Spooky. "Shareware culture is here to stay." He
said the entertainment industry has a "neo-medieval mentality. They need to
update their (business models)."
The Supreme Court is expected to rule on the case in June. Whatever the outcome,
observers think the issue may end up in Congress.
In Congress' last session, entertainment companies fought mightily to pass the
Inducing Infringement of Copyrights Act, which would have held technology
companies accountable for copyright infringement committed by people who use
their products. Technology and consumer groups were staunchly opposed to the
legislation, and the bill ultimately failed to pass in the Senate Judiciary
Committee.
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