Just over a month after the Video Software Dealers Association asked for such a review, the U.S. Supreme Court agreed to consider whether peer-to-peer file swapping networks are responsible for copyrighted material their users swap, in effect hearing a challenge to lower rulings holding Grokster and Morpheus not liable for such swapping.
The Electronic Frontier Foundation – which represents Morpheus parent StreamCast in the case – said they look forward to the Supreme Court taking MGM, et.al. v. Grokster, et.al., with arguments scheduled to begin in March 2005. The EFF also didn't back away from its earlier assertion that the Supreme Court's own precedent backs Grokster and Morpheus in the dispute.
The 9th U.S. Circuit Court of Appeals, upholding a federal trial court ruling from 2003, held in August that Grokster and Morpheus could not be held liable for infringement on grounds that P2P has substantial uses unrelated to copyright file swapping, and that neither Grokster nor Morpheus actually stores such material on its own servers.
VSDA vice president of public affairs Sean Bersell told AVNOnline.com his group thinks it's a good move for the Supreme Court to hear the case.
"There are very important issues that need to be examined here," he said. "Obviously, in urging the court to take the case, we indicated we thought the 9th Circuit ruling was incorrect, and that [P2P] services that facilitate this type of copyright theft, this type of theft of people's movies over the Internet, ought to be able to be held accountable.
"They shouldn't be able to evade liability by deliberately blinding themselves to what their users are doing," Bersell continued. "Their whole business is built upon facilitating infringement of other people's copyrights. They are facilitating it. They are providing the tools to do it. They know what they're doing. And they're profiting by it."
EFF legal director Cindy Cohn said her side also looks forward to the Supreme Court's consideration, saying they expect the justices to look very closely at the case as a whole.
"We think the Betamax decision that gave us all the VCR (activity and sales and usage) has served the public, the technological community, and the content industry very well over the last twenty years," Cohn told AVNOnline.com, adding that talk of P2P eroding music and film industry revenues as heavily as those industries trumpet is exaggerated.
"Remember that the people who are suing Grokster [and Morpheus] and making a lot of noise are the same people who sued to make the VCR illegal," she continued. "The content industry has always been hostile to new technology, but they have also benefited tremendously from [it] despite their protestations. I think that if you look at the last few quarters, the music industry [is] making a recovery. Certainly the trending…doesn't indicate their imminent death. The trending for the motion picture industry is, they had a record year last year and are on track to have one this year."
The movie industry and allies are due to submit their briefs to the Supreme Court by January 24, and the EFF brief on behalf of StreamCast/Morpheus is due to the high court February 28.
