Tech Firms to Seek Legal Protection From Pirating Internet File Sharing at Issue in Supreme Court Case
http://www.washingtonpost.com/ac2/wp-dyn/A31332-2005Jan23?language=printer By Jonathan Krim Washington Post Staff Writer Monday, January 24, 2005; Page A02 Several large technology corporations will urge the U.S. Supreme Court today to continue to shield businesses and innovators from legal responsibility if their products or services are used by consumers for illegal acts. The companies, including industry giants Microsoft Corp., Yahoo Inc., Google, America Online Inc. and Apple Computer Inc., will argue in court filings that the innovations that have helped fuel U.S. economic growth could grind to a halt if protections from liability were stripped away. At issue is the continuing popularity of Internet file-sharing services, whose software lets users swap digital music, videos and software regardless of whether they are copyrighted works that should be paid for each time they are sent to another consumer. The Supreme Court is scheduled to hear arguments March 29 in a suit brought by the motion picture and recording industries against Grokster, one of the leading "peer-to-peer" filing-sharing services. Representatives of all sides on the issue agree that the case could determine the fate of services such as Grokster, KaZaa and Morpheus, which in the eyes of the entertainment industry are responsible for the pirating of millions of dollars in losses annually. Technology companies and Internet service providers do not defend illegal file-sharing; several software companies continue to be victimized by the practice. But many of them have differed with some of the entertainment industry's tactics in combating the phenomenon. These include efforts to get Congress to mandate the insertion of copyright-protection technology into products, or to create new legal liability for businesses whose offerings might induce copyright infringement. Similarly, technology firms do not want the Supreme Court to set a precedent that leaves every potential inventor worried about being liable if someone uses the invention in an illegal way. The companies, which are filing as neutral parties in the case, "do not condone -- indeed, they strongly condemn -- the use of peer-to-peer technologies to violate copyright law," according to a draft of a filing by the Digital Media Association, in conjunction with two other trade organizations, the Information Technology Association of America and NetCoaliton. "Neither, however, do [the companies] support the substantial broadening of the standards for secondary liability that petitioners urge this Court to adopt." The filing, which is also supported by the public-interest group Center for Democracy and Technology, argues that the case should be sent back to a lower court to determine if Grokster violated existing copyright laws by actively encouraging and helping its users to be pirates. What makes file sharing such a legal tangle is that users trade files among themselves. The services merely provide the tools, and claim they have no way of policing what their customers do. Filing-sharing firms liken their status to that of telephone companies and Internet service providers: conduits of communication, which might be legal or illegal. They also say the technology is used for legal purposes, including the transfer of noncopyrighted works and some licensed material. So far, they have prevailed in the courts. Last August, the Ninth Circuit Court of Appeals dismissed challenges to Groskter's business. The court cited a key 1984 case, also brought by the entertainment industry, which argued that Sony Corp.'s Betamax technology for recording television programs allowed for mass copyright infringement. The court sided with Sony, ruling that if a technology had "substantial" legal uses, its purveyors could not be held responsible for illegal activities. Xerox Corp., for example, would not be responsible for illegal copies made on its machines. Sources close to the entertainment industry, who declined to be identified because their filings are not yet complete, said their filings would be similar in many respects. They said they, too, want to protect legitimate innovations and preserve file-sharing as a technology. But the industry wants the Supreme Court to rule that measurements such as whether a service is primarily being used for illegal purposes, and whether a service provider has the ability to curb that illegal activity but fails to do so, can also be looked at to determine liability under the Sony doctrine. Digital-rights advocacy groups, electronics manufacturers and many technology firms fear those standards could lead to extensive litigation that would chill innovation. Mitch Bainwol, head of the Recording Industry Association of America, said his industry merely wants to strike a balance. "We need to put in our equation the innovation of creative works from artists, not just the innovation of the devices," he said. Court submissions from Grokster and other parties supporting its position are due in February. � 2005 The Washington Post Company You are a subscribed member of the infowarrior list. Visit www.infowarrior.org for list information or to unsubscribe. This message may be redistributed freely in its entirety. Any and all copyrights appearing in list messages are maintained by their respective owners.
