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Government on Wrong Side of Grokster Case

On December 10, 2004 the Supreme Court agreed to hear the entertainment industry’s case against two file-sharing services, Grokster Ltd. and StreamCast Networks Inc (Morpheus), through which millions of people swap music and movies online, a decision that could decide the future of digital copyright rules and related technology for years to come.

The entertainment industry says more than 2.6 billion copyrighted music files and 15 million movie files are traded each month, which they claim imperils the entire recorded entertainment industry.

Grokster and StreamCast cite the 1984 Betamax decision, in which the Supreme Court refused to make Sony liable for alleged illegal recording of movies and TV shows by its customers as long as its video recorders also could be used for legal purposes such as recording a show for later viewing, or “time-shifting.”

In August, the U.S. Court of Appeals for the 9th Circuit in San Francisco ruled in favor of Grokster and StreamCast, saying that their position was essentially the same as that of Sony in the 1984 case.

What’s It About?

Not too long ago you bought music on vinyl, tape, or CD and if you wanted to make a copy for portable use in your car or Walkman or to share with a friend, you manually recorded it, typically onto cassette. But then the Internet dawned and with it the digital communication age and a fundamental shift in the nature of copying and sharing.

A digital copy of a song can be reproduced any number of times without wearing out or degrading in quality, and made available over the Internet, can be freely copied any number of times by any number of people. No wonder the original Napster file-sharing service so freaked out the music industry when it was launched as a free music clearinghouse in 1999.

The industry has blamed unauthorized sharing of music for slumping sales of CDs ever since, but this view fails to take into account the overall poor state of the economy, the rise of rival entertainment sources like DVDs and games, the release of fewer CDs, the end of the vinyl-to-CD conversion, and simple consumer dissatisfaction with industry product. Some studies have even appeared to indicate file-sharing increases CD sales, but it’s all open to interpretation and is probably close to an overall wash.

The industry succeeded in shutting down brash Napster with litigation, but this led to the development of services like Kazaa and Grokster, which unlike Napster, do not host MP3s on their own centralized computers, but function as searching and linking tools between their millions of customers, who make music files available for copying from their own computers.

This is “peer-to-peer,” or P2P, and while this technology has been tainted by the unauthorized sharing of copyrighted music and movies, the software enabling it is important – picture networks of freely shared ideas facilitating scientific research, software development — all kinds of collaborative efforts — and the general dissemination of information.

Government On the Wrong Side

With oral arguments for MGM Studios Inc. v. Grokster Ltd set to begin March 29, yesterday the government’s top lawyer, Acting Solicitor General Paul D. Clement, filed a brief supporting the entertainment industry.

“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,” Clement wrote in the 30-page brief, a filing expressing the government’s opinion. Unlike the Betamax case, Clement wrote, Grokster and Morpheus don’t have substantial legitimate uses.

“The overwhelming use of respondents’ networks is infringing, and it appears likely that most if not all of respondents’ revenues are derived from that infringement,” Clement wrote.

But in the last appeal the industry lawyer himself said that 10% of the files are legit. Isn’t 10%, which is surely understated if it came from the industry lawyer, sufficient to establish “substantial legitimate use”? The U.S. Court of Appeals for the 9th Circuit thought so – what’s changed in the interim? Nothing.

In a battle of rapacious scum, the government is backing the scumier. Sure, Grokster, Morpheus and the other file-sharing services suck, making money from advertising by facilitating illegal file-sharing while playing dumb, but the entertainment industry sucks even harder, seeking to shut down just the latest in a long line of consumer-empowering technology that stretches at least back to the player piano.

“The evidence that file sharing has significantly hurt the large content companies is very thin,” Gigi B. Sohn, president of Public Knowledge, a digital rights advocacy group, told the Washington Post. “But the tradeoff of giving content companies more control over the development of technologies and of overturning Betamax would be very significant and very harmful to consumers and to our economy.”

I thought the government cared about such things.

UPDATE
The entertainment industry generated a shitload of amicuses to go along with their curiae:

    The entertainment industry was joined by filings from a star-studded supporting cast that includes musicians such as crooner Tom Jones and pop singer Avril Lavigne, 39 state attorneys general, the Christian Coalition of America, the Hip-Hop Summit Action Network, professional sports leagues and a roster of university law professors and economists.

    “I’ve been robbed,” Rick Carnes, who heads the Songwriters Guild of America, said at a news conference. “My property is being stolen.”

    ….the studios and record labels hope that key supporters might help sway the court. Among those who spoke at yesterday’s RIAA/MPAA news conference was former solicitor general Theodore B. Olson, who filed arguments on behalf of a citizen group that defends property rights.

    File-sharing networks “have engaged in, for profit, and on a massive and widespread basis, the greatest ongoing theft of intellectual property that the world has ever seen,” Olson said.

    Also lending their names to the industry’s filing were high-profile attorneys Kenneth W. Starr, who was the special prosecutor investigating the activities of President Bill Clinton, and David E. Kendall, who represented Clinton at his impeachment hearings.

    The filing also cites Jane C. Ginsburg, a prominent copyright-law scholar who wrote an article that supports the industry’s view of the case and who is the daughter of Justice Ruth Bader Ginsburg. [Washington Post]

About Eric Olsen

Career media professional and serial entrepreneur Eric Olsen flung himself into the paranormal world in 2012, creating the America's Most Haunted brand and co-authoring the award-winning America's Most Haunted book, published by Berkley/Penguin in Sept, 2014. Olsen is co-host of the nationally syndicated broadcast and Internet radio talk show After Hours AM; his entertaining and informative America's Most Haunted website and social media outlets are must-reads: [email protected], Facebook.com/amhaunted, Pinterest America's Most Haunted. Olsen is also guitarist/singer for popular and wildly eclectic Cleveland cover band The Props.

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