Attorneys for the movie and music industries have asked the U.S. Supreme Court to hold Grokster and Morpheus responsible for their customers' swapping copyrighted movies and music over those networks.
Grokster and Morpheus, according to a filing before the high court written by Washington lawyer Donald Verrilli, wreak "catastrophic, multibillion-dollar harm on [the motion picture and recording industries] that cannot be redressed through lawsuits against the millions of direct infringers using those services."
In mid-August, a three-judge panel of the Ninth U.S. Circuit Court of Appeals upheld a lower court ruling from 2003 that held Grokster and Morpheus parent StreamCast could not be held liable for infringement because, unlike the original Napster, they don't have servers directing users to the copyrighted works; instead, Grokster and Morpheus users swap files over the Net on their own while the companies don't always know verifiably that the material is copyrighted.
"We value the role that copyright has played in our society, however it is innovation that has been the foundation of America and what has made our country great…. I am proud that Morpheus has become the first American P2P company to successfully win its fight for the right to continue to develop innovative new distributed communications technologies," said StreamCast chief executive Michael Weiss after the 9th Circuit Court ruling.
Attorneys for both StreamCast and Grokster continue to hold they shouldn't be held liable for infringement based on their users' illicit acts. But the Electronic Frontier Foundation, which has represented StreamCast, is optimistic that the high court may not rule in favor of the movie and music industries if they decide to take the appeal.
EFF staff attorney Wendy Seltzer said it was no surprise that the movie and music industries want to take it to the Supremes, "given that they just failed for the moment to get Congress to change the law with the Induce Act." The Induce Act has stalled in the Senate. "That was their bid to get Congress to make peer-to-peer illegal," Seltzer told AVNOnline.com. "Instead they're trying to ask the court to change the law.
Neither the Motion Picture Association of America nor the Recording Industry Associaiton of America – the latter of which filed suits against 762 more peer-to-peer online file swappers at the end of September, including on 26 university campuses – had commented on the Supreme Court filing as of this writing.
"The decision of the Ninth Circuit Court was absolutely correct," Seltzer said, "but decisions about the shape of copyright law are the job of Congress. Until Congress changes its mind, there's nothing the courts can or should do to alter that. The Betamax rule has been protective of technological innovation and has been a good thing for the country's technological advancement."
Seltzer observed that the film and music industries cannot lobby the Supreme Court the way they can Congress or the White House. "And they'll be making the same arguments [before the high court] they've now tried and failed to make twice," she said. "There've been four judges unpersuaded, and all we need is five more."
