Entertainment Industry Reaffirms Anti-P2P Stance

Supreme Court Urged to Hold File-Sharing Services Liable For Copyright Violations

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."