A much-anticipated Supreme Court hearing of arguments over peer-to-peer file swapping networks began March 29 with the justices expressing concerns over whether the music and movie industries’ litigation against the networks could obstruct innovation on the Internet.
But at the same time, the justices were said to have expressed concurrent unease over peer-to-peer networks alleged encouraging of and profiting from online piracy.
Early reports from the high court session described a “lively argument” in which Justice Antonin Scalia said flatly that the answer to the innovation question could be yes. “(If) I’m a new inventor,” Scalia reportedly said, discussing a possible ruling in favor of the movie and music industries, “I’m going to get sued right away.”
Justice Stephen Breyer also said the same peer-to-peer networks that can be used for swapping copyrighted songs and films illegally could also have “some really excellent uses” that are not tied to illegal activity, according to those reports.
But in a discussion with a software attorney about whether profits from pirated materials could be used properly to support a young technology operation, Justice Anthony M. Kennedy said, according to the reports: “That seems wrong to me.”
The case specifically pits MGM against Grokster and StreamCast, the latter the parent company of the Morpheus P2P network. Two lower California courts have already ruled that the two P2P networks can’t be held liable for the infringing activities of their users, because among other things, the networks themselves do not store the swapped material on their own servers—and the material can be used for entirely legal purposes.
Both sides have some high-profile supporters, with music stars Don Henley, Sheryl Crow, and the Dixie Chicks backing the music and movie industries on the grounds that their livelihoods are threatened by P2P free swapping. Other music stars, including electronic composer and producer Brian Eno, rockers Heart, and rap legend Chuck D support P2P, saying it lets musicians find greater distribution for their work and stops the entertainment business from virtually vetoing any new technology and products.
Motion Picture Association of America Dan Glickman argued the movie business would keep trying to get consumers to buy digital films. They “want a legal, hassle-free, reasonable-cost way to get their products online,” he told reporters the day before the Supreme Court hearing began. And Recording Industry Association of America chief Mitch Bainwol told reporters that the music industry was “doing all the things we should be doing to move into this digital age,” adding that that was true regardless of how the Supreme Court rules in MGM v. Grokster.
