Entertainment Industry Looks For Supreme Relief

The entertainment industry filed a petition with the U.S. Supreme Court in
order to get what they say is a definitive ruling whether software companies
should be allowed to create software used to facilitate pirating copyrighted

“Unless the laws keep pace with innovation, we run the risk of imperiling the
creation and development of legitimate, new technologies that form the
foundation of the information economy driving our country’s growth,” said
Dan Glickman, president and CEO of the Motion Picture Association of America
(MPAA), in a statement.

The petition, “Metro-Goldwyn-Mayer Studios Inc. et al v. Grokster Ltd. et
al,” was filed in the highest court, a Supreme Court official confirmed
Friday, but said it hasn’t received a docket number yet. It’s unknown when
the justices will accept the case or not.

The case has met with little success for the 38 recording and movie studios
represented by the Recording Industry Association of America (RIAA) and

Grokster and StreamCast Networks Inc. (makers of Morpheus), the two
P2P application developers named in the petition, have successfully defended
themselves in the U.S. District Court in Los Angeles in April 2003,
as well as with the Ninth Circuit Court of Appeals in August.
Both courts agreed that while copyright violations do occur on P2P networks,
the software makers cannot be held liable for the infringements.

“This is one of the most important copyright cases ever to reach this
court,” the entertainment industry’s petition reads. “Resolution of the
question presented here will largely determine the value, indeed the very
significance, of copyright in the digital era.

Respondents Grokster and
StreamCast facilitate copyright infringement on a scale the Register of
Copyrights has called ‘mind-boggling.'”

It’s a continuation of the industry’s efforts to alter
the “betamax” ruling of 20 years ago to protect their copyrighted materials. Whereas back then
it was the entertainment industry against audiotape and videotape copying of
music and movies, today, it’s the P2P applications created by
companies like Grokster, eDonkey, Morpheus and BearShare.

“A quick review of the petition shows that these industries still refuse to
accept the truth that the people who develop peer-to-peer software are not
in the business for providing a music service — that they don’t have control
in any meaningful way of what people do with their software,” said Adam
Eisgrau, executive director of Washington, D.C.-based P2P United, a P2P
advocacy group that includes Grokster and StreamCast. “Pursuing a strategy
of killing an entire technology is a very poor strategy indeed.

“We are optimistic that the court, as it did 20 years ago in the betamax
ruling, will tell the entertainment industry that, while they
are important, they are not more important than society’s technological
process,” he added.

Matt Grossman, an MPAA spokesman, said there are differences
between the ruling 20 years ago and P2P use today.

“The Ninth Circuit basically said that there were substantial non-infringing
uses, and we assert that since we know 90 percent and likely upwards of 90
percent is copyright-infringed materials, that we see it as substantially
infringing,” he said.

He points to inconsistencies within the different circuit court ruling
around the nation, noting the Seventh Circuit essentially ruled in the
entertainment industry’s favor; the entertainment industry wants to get a
definitive ruling from the Supreme Court.

The Seventh Circuit ruling he refers to is the July 2003 ruling against
Aimster, a file-swapping site that couldn’t prove its P2P network could be
used for lawful means. The judge particularly noted the company did nothing
to discourage pirated material — like the ability to buy legal copies on
the network, as some P2P networks do — and even taught visitors how to
encrypt their distribution of copyrighted material.

“From what people tell me about that case, the facts are highly
distinguishable between the Seventh Circuit and the Ninth Circuit,” Eisgrau
said. “It’s the Ninth Circuit who puts the relevant facts of traditional
notions of copyright law that frames those facts most effectively for the
court. We believe the court, as it has in the past, will act to protect
the rights and ability of innovators and new technologies.”

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