Two briefs with opposing views of peer-to-peer networks and their alleged role in copyright infringement have been filed with the Supreme Court.
Fifteen trade and professional organizations and guilds, including the Video Software Dealers Association, on November 8 filed a brief urging the high court to review a federal appeals decision that affirmed Grokster and Morpheus hold no direct liability for copyright infringement committed by their users. That same day, Grokster and Morpheus filed a brief urging the court to let stand the three-judge panel of the Ninth U.S. Circuit Court of Appeals that upheld a 2003 ruling in MGM Studios v. Grokster.
That original ruling, handed down by U.S. District Judge Stephen Wilson, found the two peer-to-peer online networks can't be held liable for direct infringement because they don't operate with central servers hosting material swapped over their networks.
The "friend of the court" brief urging the Supremes to review the rulings was filed by the VSDA and several state attorneys general, labor unions, retailers, and pro sports leagues, among others. The brief urges to the high court to take the case because of “the significant economic impact of entertainment piracy; the traditional role of the courts, rather than Congress, in defining the law of secondary copyright liability; and the impact on the court system if copyright holders are forced to sue individual infringers rather than the peer-to-peer services through which the infringement is conducted.”
VSDA vice president for public affairs Sean Devin Bersell told AVNOnline.com he thinks there's a good chance the Supreme Court will take the case, which was appealed by a group of movie and music companies led by MGM, the original lead plaintiff.
"I think that if you look at the criteria the court uses, I think the chances are very good that the court will take the case," Bersell said. "There's a split in the circuits. The Seventh Circuit Court had a case with Aimster, another P2P network. They came to the opposite conclusion – they issued a ruling to shut down Aimster. And so you have what you call a split in the circuit. That's very important. The other thing is, this is an area of court-made law rather than statutory law. The court is more apt to take the case in such a circumstance. So I think that bodes well."
Asked whether the Grokster ruling equaled something on the line of an automaker being held liable because its vehicle was driven in a drunk driving case, Bersell said the similarities are far less than people might think.
"There's a strong argument to be made that what Grokster and Morpheus did was, they looked at the Napster decisions and specifically engineered their services to get around the Napster problem," he said. The original Napster was brought down in large part because, in its heyday as the granddaddy of P2P, they did store songs and films and other swappable files.
Grokster and Morpheus, Bersell said, made an end-run around the Napster construction in that regard. "They deliberately blinded themselves to the activity that's going on, and their services are almost wholly dependent on that infringing activity, and the user of the system is attracted by the ability to engage in copyright infringement, and Grokster knows it and Morpheus knows it," he said.
"And they benefit from that infringement indirectly," Bersell continued. "And they ought not to escape liability because they specifically engineered [their programs] to that result."
He also said that letting people get away with such infringement would do the very thing P2P defenders say shutting down P2P networks would do: stifle creativity. "If people know that if they make a movie anybody can steal it with impunity, then we're going to put some real brakes on creativity in the entertainment arena," he said.
The Electronic Frontier Foundation and Houston attorney Charles Baker represent Morpheus parent StreamCast in the case. "The Ninth Circuit got it right and applied the Supreme Court's own precedent in the Sony Betamax case," said EFF senior staff attorney Fred von Lohmann. "There is no reason to revisit the unanimous ruling of the Ninth Circuit and insert judges into the design rooms of technologists across the nation."
