Byline: David McGuire
The recording and motion picture industries filed legal arguments with the Supreme Court late Monday urging the justices to declare Internet file-sharing services illegal under existing copyright law.
Echoing arguments that have been rejected twice by lower courts, a brief submitted by the Recording Industry Association of America and Motion Picture Association of America said the makers of two popular peer-to-peer services -- Morpheus and Grokster -- should be held accountable for the rampant illegal downloading of copyrighted works committed by their users.
"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," said Theodore Olson, the former U.S. Solicitor General hired by the RIAA and MPAA to help represent them in the case. "These enterprises were launched with the singular purpose of enabling and profiting from the violation of copyright laws," Olson said.
At the center of the case, MGM Studios Inc. v. Grokster Ltd. , is the question of whether the Supreme Court can find song-swapping services like Grokster and Kazaa to be illegal, while still preserving the legal principle that protects the makers of popular devices like the iPod, CD burner and video recorder. Entertainment companies say the court can do just that, but some public interest advocates aren't so sure.
In 1984, the Supreme Court ruled that Sony could legally sell the Betamax home video recorder, despite the fact that it could be used to make illegal copies of television shows, noting that the Betamax could also be used for legitimate purposes.
In the legal briefs filed on Monday, the entertainment industry said the Betamax ruling shouldn't protect Grokster and other file-sharing services.
"This case could not be more different," the entertainment companies wrote in their brief. "The Grokster and StreamCast [the publisher of Morpheus] services are used overwhelmingly for infringement, and not even respondents have tried to justify their users' copying and distribution as fair use."
The RIAA and MPAA argue that the lower courts should have considered evidence that more than 90 percent of the transactions over file-swapping networks are illegal before they shielded Grokster and Morpheus from liability under the Betamax doctrine.
Entertainment industry lawyers today conceded that their argument isn't terribly different from those rejected by the lower courts. They insisted that the court could rule against Grokster within the confines of the Betamax decision.
But Mike Godwin, the legal director of Washington-based Public Knowledge, said it would be very difficult for the court to issue a ruling that "nails Grokster, but lets a CD burner manufacturer off the hook."
Godwin argued that the Betamax case requires only that a technology be "capable" of a non-infringing use -- something that the entertainment industry acknowledges Grokster is -- not that it's users take advantage of that function.
"You can see why the court made that the test. They don't want to put manufacturers in the position of guessing whether people will infringe or not. They didn't want to place that sort of burden on technology manufacturers," Godwin said.
Public Knowledge plans to file its own brief in the case close to the time that StreamCast and Grokster are due to file their briefs in the case next month.
Industry attorney Olson dismissed the notion that driving Grokster out of business would harm legitimate companies.
"Stopping Grokster-like businesses is no threat to innovation, any more than stopping identity theft or credit card fraud stifles innovation," he said.
Streamcast CEO Michael Weiss said a Supreme Court ruling in favor of the entertainment industry might result in "the criminalization of commonplace items as ubiquitous as your VCR, or even your PC's hard drive, let alone your DVD burner, iPods and TiVo."
"This case is less about a community of millions of Americans swapping songs but more about a full frontal attack by the content community to control innovation," Weiss said.
Dozens of organizations filed briefs in the last two days either supporting the entertainment industry's stance or taking more of a neutral position. The U.S. Justice Department weighed in on the side of the RIAA and MPAA in a brief filed on Monday, while a coalition of technology firms has filed a brief urging that the lower court rulings in MGM Studios Inc. v. Grokster Ltd. be overturned while still preserving the 1984 Sony Betamax ruling.
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