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Morpheus: Legalize It

Morpheus is a popular file-sharing software based on the decentralized Gnutella peer-to-peer (P2P) networking protocol, but is it legal?

Lawyers at StreamCast Networks, developers of the popular file sharing software, seem to think so. The Franklin, Tennessee-based company Monday filed briefs in a Los Angeles federal court asking a judge to rule that distribution of the software does not violate copyright law.

Coming to StreamCast's aid is San Francisco-based online non-profit, civil liberties organization Electronic Frontier Foundation (EFF), which stood by StreamCast's law team of Brobeck, Phleger and Harrison arguing that distribution of the software is legal because the product is "capable of substantial noninfringing uses and because StreamCast cannot control the various uses of the software."

On October 2, 2001, twenty-eight of the world's largest entertainment companies sued Streamcast for the allegedly infringing actions of users of its product (MGM et al v. Grokster et al, Case No. 01-CV-8541 SVW).

The plaintiffs, represented by D.C.-based attorney David Kendall of Williams & Connolly, argue that they are not opposed to P2P technology but to the rampant thievery that services like Morpheus promote.

However, the record industry recently failed to stymie StreamCast's "Betamax VCR Defense." Additional briefs will be filed in the months to come, with oral arguments set for December 2, 2002, before U.S. Federal District Court Judge Stephen Wilson in Los Angeles.

The Betamax Defense, a lawsuit that eventually gave clearance to the VCR industry, is based on the 1984 Sony vs. Universal City Studios case in which the U.S. Supreme Court ruled that as long as a new technology had substantial, non-infringing uses, it could not be held accountable for illicit uses.

Because there is no central server, record of users on the system, or what data they were swapping. Morpheus users can access a broad variety of materials including shareware programs, movies, music, photos, and data files. And Morpheus makers say they have no control over how their software is used once it is downloaded.

The peer-to-peer software maker argues that movie and recording studios should target the people who use the software to distribute illegally obtained copies of films, music, and data over the Internet, rather than stifle the technology itself.

Also supporting StreamCast in the motion is nine-time Grammy nominee, Janis Ian, who believes that peer-to-peer software represents important new opportunities for artists.

"Free Internet downloads are good for the music industry and its artists," Ian said during a recent concert in San Francisco. "Every act that can't get signed to a major, for whatever reason, can reach literally millions of new listeners, enticing them to buy the CD and come to the concerts."

She adds that during the heyday of Napster she saw a marked increase in CD sales from her Web site. She attacks technological and political measures meant to harm consumers by restricting their right to copy and back up their legally purchased music.

During her 17-album career, Ian has earned nine Grammy nominations and three awards. Her best known songs include 1967's "Society's Child" and 1975's "At Seventeen."

The case for peer-to-peer file sharing has been rekindled recently with the recording industry squelching many swapping sites.

Napster's plans on becoming a subscription service were put on the back-burner after its defeat in Delaware, although the bankrupt company's Web site says it is still a "work in progress."

Last week, Aimster/Madster was silenced after a U.S. District Court in Chicago granted a preliminary injunction after the recording industry said the file distribution network violates copyright law.

Other sites like Grokster and Dutch-owned KaZaA continue to fight lawsuits over copyright infringement.

But since, Morpheus currently has the largest user base, the EFF said it is important to draw a legal line in the sand.

"Morpheus should be legal for the same reasons that VCRs, photocopiers, MP3 players, and CD burners are legal," said EFF attorney Fred von Lohmann.