Landmark P2P Case Back in Court Today

Big Music and Big Movies will square off once again with Internet file-sharing services Grokster and Morpheus today in a California courtroom over what the “bigs” say is rampant copyright infringement taking place on those networks.

A lower court dismissed contentions that the owners of the services should be held responsible for copyright infringements perpetrated on their networks. Now the industry hopes a federal court of appeals in Pasadena will take a more favorable view of its arguments and topple the lower court’s ruling.

“There is no genuine dispute that the raison d’etre of [these] networks is the unlawful exchange of copyrighted songs and movies,” the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) argued in a brief filed with the appeals court. “The harm to [us] continues to be enormous.”

Unlocked Door to Store

Grokster and Morpheus have “unlocked the door to every video and record store in the country and invited every person to come in and copy as much as they want, in flat violation of [our] copyrights,” the brief said.

But an attorney for the peer-to-peer (P2P) services sees the situation differently. “What the entertainment companies are trying to do here is overturn the rule that the Supreme Court gave us when those companies attacked the VCR,” Fred von Lohmann, a staff attorney for the Electronic Frontier Foundation in San Francisco, told TechNewsWorld.

“They’re saying that if you’re a technology company, you have a responsibility to redesign your product so they’re happy with it,” he contended.

Wrapped in Tech Flag

“That’s never been the rule before,” von Lohmann continued. “If it were the rule, there would have never been a VCR, there would have never been a photo copier, there would have never been an Internet because those are technologies that the entertainment companies are unhappy with.”

Needless to say, the entertainment companies see the motivation of the P2P networks seeking protection behind the so-called Betamax decision as less than genuine. “They have wrapped themselves in the flag of technology and the Betamax case, and we just think that that garb does not fit them at all,” Cory Ramos, an attorney with Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York City, told TechNewsWorld.

“Baloney,” declared Wayne Rosso, former president of Grokster and currently CEO of Optisoft, the developer of Blubster, Piolet and MP2P Technology. “It’s a technology,” he told TechNewsWorld. “It’s the same as coaxial cable. It’s a network.”

Blind Eye to Piracy

“Our technology has no clue what kind of content is going through it,” said Rosso.

However, according to the brief filed with the appeals court by the MPAA and RIAA, that’s an inaccurate assessment. The brief claims Grokster and Morpheus failed to establish in the lower-court case that they have no control over their networks.

“They maintain regular systematic control of the system and their business,” the brief argued. “It was undisputed, for example, that [they] currently filter or block certain material available over their networks, [such as] pornographic works, viruses and bogus files.”

“Instead of employing their filtering to stop piracy,” the brief continued, “[they] turned a blind eye to detectable acts of infringement for the sake of profit.”

“The recording industry should give their PR people a bonus for creative prevarication,” Adam Eisgrau, executive director of P2P United in Washington, D.C., told TechNewsWorld. “In other words, they’re simply not telling the truth.”

Creative Solution Needed

Any filtering on the network is done by individual users, not the makers of the P2P software, explained Eisgrau. “The members of P2P United have no central ability to control what individual users who have installed their software on their individual computers do with that software after it gets installed,” he said.

“If the recording industry put 10 percent of the effort that it has put into telling untruths to policymakers about the nature of this technology into finding a creative solution for the marketplace, then artists would already be realizing revenue,” he added.

At the hearing today, each side will be given 30 minutes to present its case and answer questions from the appeals panel of three judges, who could take several months to issue an opinion in the matter.

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