First deadline passes for Supreme Court Grokster case

First round of comments from friends of the court

Lobbying has started in earnest to the US Supreme Court, which has one last chance to overturn its 20 year-old principles over P2P, and ban it despite its still relevant logic that has it that any technology with material, non-infringing uses is legal.

Since the day that decision was made in regard to Betamax tapes, anything which copies, such as a photocopier or fax, or VHS tapes, have been deemed to be legal, with positive societal consequences, which have, in the long run, also benefited the entertainment industry despite itself. Without that ruling DVDs would never have become the biggest selling source of film revenue, but the film industry worked hard to stop it.

This week it is the turn of copyright owners, artists and members of the legal profession to all make their points in print and in letter writing to the powers that be, while the rich entertainment industry bemoans loss of US jobs and prosperity if the decisions made in lower courts are not reversed.

The court have received these submissions as 'friend of the court briefs,' supporting one side or the other, which were due in by the end of last week.

The P2P networks are arguing in their contributions that the Supreme Court shouldn't interfere because Congress is considering the same subject. But that won't cut any ice with the Court and it will take its decisions based on existing law, while Congress has the power to create new laws.

There are similarities with the past 'betamax' decision and differences, in that when Sony introduced video recording technology, it had not yet impinged on revenues for the film studios and the slight was more imagined than real.

Piracy via P2P has virtually destroyed the profits of the music industry and are set to repeat that process with film. The thing to remember with the Supreme Court is that it is about seeing the intent of the law carried out. It is not constrained, as lower courts are, to translating the spirit of previous decisions into new decisions.

Given the persistence of the P2P software suppliers, and the massive scale of piracy, we would not be at all surprised to see some form of compromise emerge from the Supreme Court, whereby it places some fresh onus on the P2P network operators to commit to some kind of anti-piracy best practice.

Napster was bankrupted out of business because a lower court felt that it deliberately encouraged content theft. Morpheus and Grokster, the focus of this complaint, have had no need to mention piracy, since everyone knew, from Napster, what P2P networks were for.

But there is an alarming technological trend among new P2P software, which is, in effect, a technological war against the blocking software used by the studios and record companies. Dummy files have been put up that are imperfect copies of a film, and these used to fool downloaders into downloading a sub-standard or incomplete version of a file. The P2P networks have countered with identification software and the storage of comments and recommendations from users, which are solely there to tell the next downloader which file is a proper copy and while one is a fake. It might be argued that they are in place purely to indicate which pirated copies are accurate.

In other words, these systems are specifically there to stop active copy protection systems from working, and there is an argument that this is already illegal under the Digital Millennium Copyright Act. On the other hand it is not Grokster and Morpheus that have innovated here, but new P2P networks.

We would not expect the Supreme Court to do nothing, but instead it will examine what is going on, take a look at existing law and perhaps lay down a legal interpretation that leads to more balance in the situation between file sharing and the content industries.

Its biggest decision and a way that it can pre-empt the decision in favor of Congress, is to decide when it hears the case, and it won't communicate even that decision until very late in 2004.

Copyright © 2004, Faultline

Faultline is published by Rethink Research, a London-based publishing and consulting firm. This weekly newsletter is an assessment of the impact of the week's events in the world of digital media. Faultline is where media meets technology. Subscription details here.

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