As the controversy over peer-to-peer (P2P) networks goes before the U.S. Supreme Court, the recording and film industries are enlisting celebrities to help make the case that network operators should be held liable for the illegal file sharing that occurs over their networks. The tech industry, meanwhile, fears that an adverse ruling might stifle innovation.
The latest court briefs filed on behalf of those fighting P2P networks Grokster and Morpheus include support from singers Don Henley, Sheryl Crow and Avril Lavigne, as well as entertainment giants such as the National Football League. The recording and movie industries — which brought suit against the popular file-sharing services — are joined by 40 state attorneys general and the U.S. government in calling for the P2Ps to be held liable for unlicensed downloads.
Electronic Frontier Foundation (EFF) staff attorney Fred von Lohmann noted that the primary issue is the longstanding court stance that technology, even if it is assisting in illegal copying or pirating, is not itself a source of liability. That stance derives from the 1984 Betamax case. While more recent court rulings have found that users of technology can be held liable for copyright infringement, the providers of that technology have not been.
Supreme P2P
The Supreme Court is now considering the case that the entertainment industry has brought against two of the largest P2P operators.
While the court strategy against the original song-swapping service, Napster, was largely successful, the entertainment groups have had more difficulty holding modern file-sharing services accountable, largely because they rely on distributed server systems instead of a central server, as the original Napster did.
Lower court rulings have consistently upheld the Betamax rule, holding that there are legitimate uses for P2P file sharing and that even though the technology may be used to infringe copyrights or licenses, the creators of the technology may not be held responsible for infringement.
The Supreme Court is expected to take up the case in March, with a ruling expected in June.
Betamax Basis
EFF’s von Lohmann said the most recent briefs filed on behalf of the entertainment groups are largely an attack on precedent.
“The briefs they’ve filed all frontally attack the Betamax principle,” he said. “To win, they’re going to have to convince the court to change the course of 20 years. The court said no 20 years ago.”
Von Lohmann added that the same entertainment groups have historically tried to challenge VCRs, dual-cassette decks, digital video recorders and other technologies that threatened their business models.
“They want the ability to control technologies that impact their business,” he said. “We can’t afford to allow the entertainment industry to be in charge of our technology in our country.”
Tech Fear
Despite a legal attack on individual users accused of unlicensed, illegal downloads and the entertainment groups’ pursuit of P2P companies, the technology has enjoyed strong use and growth among Internet users, according to analysts.
As for the technology industry’s view on the P2P fight, von Lohmann said there is apprehension that a change to the Betamax rule would be costly.
“There’s a very real fear in the technology industry,” he said. “Undermining Betamax is a huge threat to the nation’s economy and our technology.”
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