Hollywood Gets Support in P2P Appeal

The recording and motion picture industries have lined up a throng of
allies to beef up a crucial appeal to overturn an earlier court ruling that
two popular file-sharing could not be held liable for copyright infringement
by users.

In support of the appeal filed on
August 19, four separate amicus (friend-of-the-court) briefs have been
introduced in the U.S. Court of Appeals for the Ninth Circuit, arguing that
the earlier decision rendered by District Court Judge Stephen Wilson was
wrong and created “a gaping technological loophole” that hurts copyright

The four briefs were filed by a group of copyright experts and law
professors, members of the copyright community, international rights owner
organizations and legal digital music download services.

In a 39-page brief prepared by nine law professors and treatise authors
on intellectual
property and copyright law, the group argued that Judge Wilson misjudged the
elements of contributory and vicarious liability in his April

That ruling, the experts contend, “has created a gaping technological
loophole that jeopardizes the ability of long-standing copyright principles
to redress viral online infringement.”

“[We] believe that those interests have been threatened by the lower
court’s opinion granting summary judgment to the defendants, which departed
from established principles of contributory and vicarious copyright
infringement, misapprehended the policy rationales on which those two
doctrines rest, and abandoned to Congress all responsibility for redressing
the massive infringement abetted by defendants,” the brief argued.

The brief, filed by professors and lawyers from NYU School of Law,
Harvard Law School, Bingham McCutcheon LLP, among others, said the District
Court ruling included “dispositive errors” in
applying the law of liability and “failed to recognize the policy interests
those doctrines effectuate.”

The group argued that the court’s ruling on Napster gave clear notice
that the law “would not tolerate those seeking to profit from such
enterprises.” However, despite the obvious similarities between Napster and
the Morpheus and Grokster networks, the district court here reached a result
contrary to Napster, according to the filing.

The experts contend that it’s near impossible for the recording and
motion picture industries to efficiently control the millions of
infringements that occur daily on the peer-to-peer networks, arguing that
the file-sharing firms can control infringements “if properly

“From a policy perspective, it would be better to permit copyright owners
to protect their rights through actions like this one, instead of in a
multitude of individual suits against direct infringers, to obtain the most
effective relief against those whose “infringement factories” are at stake,”
the group added.

In the brief, the group of legal experts claimed the District Court’s
refusal to consider comparable constructive knowledge evidence “ignores not
only the law, but also the important policy rationale for imposing liability
based on constructive knowledge: to hold otherwise would encourage willful
blindness on the part of one who materially contributes to direct

A separate amicus brief filed by members of the copyright community
echoed those sentiments. “The lower court in this case deviated
dramatically from case law governing contributory and vicarious
infringement. It articulated new, narrow standards that are unsupportable
under controlling precedent and constitute terrible public policy.”

The copyright holders insist that the District Court’s “misapplication of
law” would create loopholes and frustrate efforts to limit online

The major legal music download services — BuyMusic, Echo, Full Audio,
Liquid Audio, MusicNet, MusicRebellion, Pressplay — also filed a support
brief outlining the difficulties they face with building a business to
compete with free music widely available on the P2P networks.“The District Court failed to understand that copyright law regulates
conduct, not technology,” the music services argued, pointing out that in
addition to the “impossibility of competing with a free service,” their
businesses were harmed by difficulties competing against companies that “do
respect the requirements under which the music industry licenses and
releases its music.”

“Because the illegal networks do not have to respect the term of a
license, consumers do not understand that under the existing licensing
models legal on-line music services currently may not offer all digital
music on an unrestricted basis,” the brief read.

The briefs were all filed to help the appeal to overturn Judge Wilson’s
ruling that Grokster and Morpheus could not control how people use their
software, which could also have legitimate applications. Judge Wilson cited
the famous Sony Betamax case of 1984, where the Hollywood studies tried to
outlaw VCRs but ran into a Supreme Court ruling that use of new technology
to infringe copyrights did not justify an outright ban on that

“Grokster and Streamcast are not significantly different from companies
that sell home video recorders or copy machines, both of which can be and
are used to infringe copyrights,” Judge Wilson wrote.

That ruling did not cover the defendant’s liability for damages from past
versions of the software or from other past activities. It also does not
cover Sharman Networks’ Kazaa Media Desktop, which is also being sued by the
Recording Industry Association of America (RIAA) and the Motion Picture
Association of America (MPAA).

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