Hollywood takes P2P battle to high court

Alleges misinterpretation of 1984 Betamax case

Hollywood’s taking its battle against P2P to the top.

MPAA, RIAA, and National Music Publishers Assn. members Friday asked the U.S. Supreme Court to overturn an August Appeals Court decision in favor of peer-to-peer networks Grokster and Morpheus.

The court ruled in August that unlike the outlawed Napster, Grokster, Morpheus and other current P2P networks can’t be held responsible for copyright infringements on their networks as they don’t help distribute it.

Decision infuriated movie and music industry execs, who claim P2P is costing them billions of dollars a year due to piracy.

The “writ of certiorari” asks the Supreme Court to consider overturning the 9th Circuit Court of Appeal’s decision because it conflicts with a previous ruling about P2P application Aimster and alleges that it incorrectly interprets the 1984 Sony Betamax case that legalized VCRs.

“By forcing the square peg of this case into the round hole of Sony-Betamax,” the writ argues, “the 9th Circuit created a completely novel test for secondary liability, unmoored from law or logic, that poses a grave threat to the very existence of intellectual property in the digital era.”

Secondary liability is a legal theory that would hold P2P companies responsible for piracy conducted by users of their software.

The writ even argues that the 9th Circuit decision encourages piracy, saying it “will also encourage even more people to use” P2P, therefore, “further eroding respect for copyright on the Internet.”Movie and music companies filed the writ now in hopes that the high court will decide whether to accept the case by the end of the year and, if it does, hear arguments next year.

P2P companies responded immediately with the now-common refrain that media companies are opposing technological progress and existing law.

“The plaintiff’s brief is an indictment against the Supreme Court’s 1984 Betamax decision itself,” said Michael Weiss, CEO of Morpheus parent company Streamcast Networks. “The law is clear and has already been decided.”

But plaintiffs responded that P2P, with its easy access to illegal free content, is inhibiting the growth of legitimate alternatives.

“Now is the time for the courts to review these businesses that depend upon violation of copyright,” MPAA topper Dan Glickman said. “Unless the laws keep pace with innovation, we run the risk of imperiling the creation and development of legitimate new technologies that form the foundation of the information economy driving our country’s growth.”

Writ comes as the Hollywood-supported Induce Act, which would essentially outlaw P2P, appears to have died for the current congressional session.

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