The Bush Administration wants the U.S. Supreme Court to dump the appellate ruling that held Grokster and Morpheus not responsible for infringing activity by their users.
"The evidence suggests that the respondents have developed vast networks of members whose only common characteristic is apparently their desire to download copyrighted music and movie files without paying for them," acting U.S. Solicitor General Paul D. Clement wrote in a 30-page amicus brief filed late January 24.
The Supreme Court begins hearing arguments in MGM Studios v. Grokster, Ltd. March 29. The Court agreed to review the 9th U.S. Circuit Court of Appeals ruling that upheld a federal judge who found that, because neither Grokster nor StreamCast, the parent of Morpheus, keep no centralized servers or databases of their own, they could not be held liable for copyright infringement.
The case goes to the heart of how an earlier Supreme Court handled the legendary Betamax case, in which a tightly-divided court ruled Sony violated no copyright law by making the Betamax videocassette recorder because it let viewers tape shows to watch after their actual airtimes, which the majority held a legitimate use of the system.
The irony was that the 1984 ruling came when the Betamax machine had been all but crushed by the VHS videocassette format.
Indeed, some recent legal briefs refer to or even seek to apply the Betamax test to peer-to-peer. The Information Technology Association of North America, NetCoalition, Digital Media Association, and the Center for Democracy and Technology – in their own January 24 brief – said the Betamax test of legitimate use has promoted everything from the personal computer to the digital music player and even the Internet itself.
But the foursome's brief also said the Betamax test does not throw protection around a particular vendor's behavior or encourage the vendor to violate copyright law.
Those four groups want the Supremes to send the Grokster/Morpheus case back to the lower courts and ask those courts to decide whether the two P2P networks behave in actual fact as parties encouraging copyright infringement. The groups also want the Court to clarify whether the Betamax test compels examining whether any technology like peer-to-peer could have been designed to shrink infringement uses.
Another technical group, the Institute of Electrical and Electronics Engineers, filed a brief in which they suggested a way to stop infringement without stopping such technological innovation as P2P: the dual-use technology principle, in which such a provider should not be considered liable for infringements of users unless the provider actually and provably lured or encouraged the user to infringe – a critical point in the 9th Circuit Court ruling against MGM in the Grokster/Morpheus case.
"A careful balance must be struck between copyright incentives for authors to create works of authorship and the right of the public to benefit from technical means to reproduce and distribute those works," IEEE-USA Intellectual Property Committee vice chairman Andrew Greenberg said in a statement after the group filed their amicus brief.
"File-sharing technology serves as the basis for the Internet and should be unrestricted to produce future revolutionary digital products," Greenberg added. "On the other hand, copyright owners must not be left to the mercy of those who set out to knowingly and intentionally induce third parties to infringe."
But the government brief argues the 9th Circuit Court was wrong and that, unlike Betamax and the videocassette recorder, peer-to-peer has no substantial legitimate use. "The overwhelming use of respondents' networks is infringing," Clement wrote in his brief, "and it appears likely that most if not all of respondents' revenues are derived from that infringement."
Perhaps it was to be expected that the music industry – pursuing its own controversial legal campaign against P2P users – applauded the government's brief, even though the government is not a direct party in the MGM-Grokster/Morpheus battle.
"We're reviewing the brief in great detail," Recording Industry Association of America chief Mitch Bainwol said in a statement, "but we're delighted and gratified that the U.S. government has chosen to enter this debate in defense of the integrity of property."
A former solicitor general, Theodore B. Olson, has been retained by the RIAA and the Motion Picture Association of America in the case. Others who have asked the Supremes to overturn the Grokster ruling include Microsoft and America Online, but those two have also asked the Supremes not to spike the original Betamax ruling while doing so.
Also weighing in on the matter were a few conservative groups known to be critical of the entertainment industry and the music business, but supporting them in trying to take a byte out of P2P in general. But these, including Christian Coalition, Concerned Women for America, Morality in Media, and others, have their own reasons to want the Supremes to take a byte out of Grokster, Morpheus, and P2P in general.
Relieving P2P networks of liability, said a filing joined by Christian Coalition, Concerned Women for America, Morality in Media, and others, could provoke a "proliferation of anonymous, decentralized, unfiltered and untraceable peer-to-peer networks that facilitate crimes against children and that frustrate law enforcement efforts to detect and investigate these crimes."
