02.06.2005 08:00 AM
Lobbyists ask Supreme Court to restrict file sharing

The entertainment conglomerates unleashed its latest assault on Internet services that let people swap music and videos, enlisting an array of artists, state officials, academics and others to urge the U.S. Supreme Court to crack down on companies that provide file-sharing tools.

Trade associations representing the major movie and recording studios argued in court papers that file-sharing networks Grokster and StreamCast Networks are “breeding grounds” for piracy on an unprecedented scale and should be accountable for the illegal actions of their users, the Washington Post reported.

The Supreme Court is scheduled to hear oral arguments March 29 in the case, which could determine the fate of services whose software is used by tens of millions of people every day.

Filings from a supporting cast that includes artists such as Tom Jones and Avril Lavigne; 39 state attorneys general; the Christian Coalition of America; the Hip-Hop Summit Action Network; professional sports leagues; and a roster of university law professors and economists joined the entertainment industry.

Also filing briefs largely in favor of the industry’s position were the U.S. Solicitor General, who argues on behalf of the federal government, and Sens. Orrin G. Hatch (R-Utah) and Patrick J. Leahy (D-Vt.), senior members of the Senate Judiciary Committee.

At issue for the court will be to what extent the provider or manufacturer of a product or service can be held responsible for the actions of those who use it, the Post reported.

File-sharing services and several digital-rights advocacy groups argue that a key 1984 Supreme Court decision, involving early videocassette recorders made by Sony, established critical protections for innovators against possible bad acts by users. Like copying machines and telephone networks, the peer-to-peer file-sharing tool is used for illegal and legal purposes, they said.

Grokster and StreamCast were sued by the entertainment industry in 2001. A federal district court in Los Angeles sided with Grokster, as did the U.S. Court of Appeals for the 9th Circuit in August. The courts, citing the Sony decision, ruled that Grokster had substantial legal uses and could not control the actions of its users without overhauling the product.

Representing the Recording Industry Association of America and the Motion Picture Association of America, attorney Donald B. Verrilli Jr. said that the 9th Circuit misinterpreted the Sony decision.

He said that if a product or service is primarily used for illegal purposes, the provider should be held accountable. Moreover, he said, the courts also should be able to hold providers responsible if they are able to take steps to halt the illegal behavior, which Verrilli said the file-sharing networks could accomplish.

Verrilli said that Grokster and other file-sharing networks are profiting from the illegal acts of their users by selling advertising on their sites.

Fred von Lohmann, senior counsel for the Electronic Frontier Foundation, which has handled much of the legal work for Grokster in the case, said the entertainment industry wants consumers to have to ask permission for how they use music and videos.

He said that if the Supreme Court adopts a standard of whether this kind of product or service is primarily used for illegal purposes, devices such as compact disc burners and the TiVo digital television recorder could be at risk.

Several major technology companies share that concern, and they have urged the court to keep the Sony standard intact but to examine whether Grokster’s conduct in promoting its service has encouraged copyright infringement.

Marty Lafferty, head of the Distributed Computing Industry Association, of which Grokster is a member, said that the “peer-to-peer genie is out of the bottle” and would not be stopped by an adverse Supreme Court ruling.

Instead, he said, the entertainment industry needs to stop boycotting file-sharing services and instead work with them on creating a licensing scheme that will make the services a legal and lucrative distribution method for all concerned.

The case is MGM Studios, et al v. Grokster Ltd., et al, No. 04-480.

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