Musicians Side With Grokster in Upcoming Supreme Court Case

In papers to be filed today, an artist’s group is backing file sharing service Grokster against the entertainment industry in a critical copyright case before the Supreme Court, scheduled to begin March 29.

Background

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.” Grokster also argues that file sharing services are used for distributing works legally, either with permission of the artist or because copyrights have expired or never obtained.

In their appeal before the U.S. Court of Appeals for the 9th Circuit in San Francisco, 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, ruling in favor of Grokster. What’s changed in the interim? Nothing.

Artists Break With Industry

The artist group, which includes Steve Winwood, Chuck D, and Heart, said that it condemns the stealing of copyrighted works, but says file sharing services such as Grokster and Kazaa provide a legal and important alternative for artists to distribute their material outside of the label system:

“Musicians are not universally united in opposition to peer-to-peer file sharing” as the major records companies claim, according to a draft of the group’s court filing. “To the contrary, many musicians find peer-to-peer technology . . . allows them easily to reach a worldwide online audience. And to many musicians, the benefits of this . . . strongly outweigh the risks of copyright infringement.”

….Before online file sharing, “distribution of recordings to retailers was controlled largely by a few large national record companies and by several ‘independent’ labels,” they argue. “Young people aspiring to be musicians faced daunting odds of ever being signed by a record label.”

One musician, Jason Mraz, said half of the fans who pay to see him in concert heard about him through illegal downloading, according to the court filing.

Meanwhile, file sharing gives accomplished artists, such as Janis Ian, a chance to control distribution of their work that might no longer be deemed worthy of commercial promotion and sales, the group said.

….The Distributed Computing Industry Association, which represents file-sharing and other technology firms, said the entertainment industry’s real agenda is to protect its monopoly.

Grokster “threatens that monopoly by providing a near cost-free distribution mechanism, which supports far more content than even Web-based distribution systems,” the group said.

Other groups filing briefs in support of Grokster’s position include the Consumer Electronics Association, the Computer & Communications Industry Association, Consumers Union, the Consumer Federation of America, and Public Knowledge, a digital-rights advocacy group.

….”This case is simply the latest in a long string of instances in which copyright owners, frightened by a new technological development” seek to place restrictions on electronic devices, Internet access services, and even on personal computers to try to prevent piracy, said a filing by the major telephone, wireless and Internet service providers. [Washington Post]

Also today, the Electronic Frontier Foundation will host a press conference to discuss the briefs filed by defendants and friends-of-the-court at 2:00 p.m. EST at the offices of Public Knowledge in Washington, DC). Confirmed attendees include:

Fred von Lohmann, Electronic Frontier Foundation, counsel for Streamcast
Mike Weiss, CEO of Streamcast
Michael Page, attorney for Grokster
Gigi Sohn, president of Public Knowledge
Mark Cooper, Consumer Federation of America
Gary Shapiro, president of the Consumer Electronics Association
Ed Black, president of Computer and Communications Industry Association

And just to keep the ball rolling, the RIAA yesterday sued another 753 people it suspects of distributing songs over the Internet without permission, bringing the hit total to over 9,000.