- A federal appeals judge questioned whether distributors of online file-sharing software should be held responsible for copyright infringement just because some people use the programs to swap copyright music and movies.
Arguing before a three-judge panel of the 9th U.S. Circuit Court of Appeals Tuesday, entertainment company lawyer Russ Frackman cited the 1980s battle over Sony’s Betamax video recorder, which was found to have legitimate uses that did not violate movie and television copyrights. Yet 90 percent of the content flowing through file-sharing networks is illegal, he said.
Judge John Noonan, however, wasn’t convinced.
“So 10 percent is non-infringing?” Noonan asked. “That sounds like a lot of non-infringing files to me.”
Answered Frackman: “If 10 percent is commercially sufficient … then let them build their business on that 10 percent.”
….On Tuesday, the judges focused much of their questioning on whether a 1984 U.S. Supreme Court decision in a copyright infringement case against Sony over its Betamax videocassette recorder can be interpreted to protect the file-sharing firms from liability.
That decision held that Sony was not liable for copyright infringement when people used its Betamax videocassette recorders to copy movies illegally because the technology had significant uses that did not violate copyrights.
Wilson applied the Supreme Court’s decision in the Sony case when he ruled in favor of Grokster, which distributes file-sharing software by that name, and StreamCast, the firm behind the Morpheus software.
….Fred von Lohmann, a senior intellectual property attorney for San Francisco’s Electronic Frontier Foundation who argued on behalf of StreamCast, said the firms’ software is used to swap live music by Pearl Jam, Dave Matthews and Phish – songs which the artists have allowed to be freely distributed, he said.
“Two million songs by (The) Prodigy have been distributed with authorization,” von Lohmann said. “The record is undisputed that these pieces of software are capable of substantial non-infringing uses.”
Another member of the panel, Judge Sydney Thomas, questioned whether forcing the file-sharing firms to filter copyright content would ultimately do enough to quell file-swapping on the Internet.
“Aren’t we just chasing the wind?” Thomas asked. [AP]
Quoting Donovan, bold stroke.