The entertainment industry yesterday took its campaign to stop illegal sharing of music and videos to the U.S. Supreme Court, telling the justices that popular online services such as Grokster and Kazaa should be held responsible for the unlawful acts of their users.
But several of the justices expressed concern that doing so could chill the incentive of inventors to develop new technologies, for fear they would face lawsuits if their products or services were used for illegal purposes.
At immediate stake are the businesses of the file-sharing providers, which are used by hundreds of millions of people around the world to trade billions of songs, videos and software programs a year, often without paying for them.
The recording and motion-picture industries have aggressively sought to shut down the systems. The Recording Industry Association of America also has sued more than 3,000 individual swappers, often settling for cash payments and promises that users will stop trading.
But lower federal courts have dismissed claims against Grokster and Streamcast Networks, citing a 1984 Supreme Court ruling that protected makers of products or services from responsibility for the acts of their users.
In the 1984 case, involving the Sony Betamax video recorder, the court ruled 5 to 4 that providers of devices or services cannot be held responsible for the acts of users if the product or service is "merely capable" of substantial legal use. Three current justices participated in that case: Justice John Paul Stevens wrote the majority opinion, joined by Sandra Day O'Connor. Chief Justice William H. Rehnquist dissented.
The entertainment industry argues that the lower court rulings effectively give Grokster and Streamcast Networks a free pass to encourage, and profit from, illegal activity simply by ensuring that a few files are being traded legally.
"Copyright infringement is the only commercially significant use of file sharing," said Donald B. Verrilli Jr. an attorney for the entertainment industry. Acting Solicitor General Paul D. Clement, representing the government, said Grokster and its brethren were being allowed to "build a business model out of infringement."
Richard G. Taranto, arguing for the file-sharing companies, responded that the technology is used extensively for legal swapping of files and that the firms have no way of knowing when their users use the software illegally.
The entertainment industry wants the Sony precedent to allow for liability when the primary use of the product or service is illegal, or when the provider refuses to take steps to try to stem potential piracy.
But those notions provoked skepticism and sharp questioning from several justices, who wondered how inventors could know whether many people might use their products for illicit purposes.
"How do we know in advance on your test" whether the inventor is safe to go forward? asked Justice David H. Souter.
