P2P parties trading barbs

War spills out into the public arena

WASHINGTON — The forthcoming Supreme Court showdown over illegal Internet filesharing heated up Tuesday as each side accused the other of exaggerating claims and hiding behind misleading arguments.

In what is rapidly shaping up to be a defining legal case of the digital age, proponents of filesharing technology gathered in Washington to fight what they believe is “an outright assault” on technological innovation by the entertainment industry.

The industry, in turn, countered that filesharing technology exists almost exclusively “to reward and promote theft.”

As the rhetoric escalated, few voices of moderation could be heard, indicating that the combative atmosphere is only likely to intensify in the run-up to this month’s court date.

Dispute is rooted in a lawsuit brought by Hollywood movie studios and music recording companies against Grokster, distributor of P2P software, and StreamCast Networks, which operates the Web site Morpheus.

Betamax cited

Plaintiffs claim that Grokster and StreamCast should be held liable for their users’ alleged illegal filesharing. But lower courts have declined to do so, citing the Supreme Court’s 1984 decision not to hold Sony Corp. liable for possibly illegal videotaping by users of the Betamax.

Surprising some observers, the Supreme Court agreed in the fall to hear the P2P case, which is scheduled for oral arguments March 29.

Earlier this week, supporters of Grokster and StreamCast filed friend-of-the-court briefs. In a joint brief, the Consumer Federation of America, Consumers Union, Free Press and Public Knowledge argued that the 1984 Sony Betamax decision applies to P2P technology because the court found that legitimate uses of technology outweigh illegitimate uses.

“Manufacturers of technology should not be punished for uses of the technology,” said Gigi B. Sohn, president of Public Knowledge.

‘Crying wolf’

Dismissing the plaintiffs’ contention that Grokster and StreamCast pose an economic threat because of lost revenues, Fred von Lohmann of the Electronic Frontier Foundation, another P2P supporter, said, “The entertainment industry has a long history of crying wolf about new technologies.” For example, the industry made the same claim about the advent of player pianos, radio, television and cassette recorders.

“Yet every new technology has benefited the copyright industry,” von Lohmann said.

If the plaintiffs win, said Michael Page, an attorney representing Grokster, “You won’t be able to create new technology unless it has the blessing of the copyright industry.”

“This case is about more than just P2P,” said Gary Shapiro, president of the Consumer Electronics Assn. “It is an outright assault on the Sony Betamax doctrine, which has been a big boon to the U.S. economy by allowing new technologies to develop.”

Having filed their briefs with the Supreme Court in January, plaintiffs and their allies responded to the defendants’ briefs by holding a press conference.

“The business model of Grokster isn’t to promote property rights,” said Motion Picture Assn. of America topper Dan Glickman. “It’s to reward and promote theft.”

85 mil songs pirated

Former U.S. Solicitor General Theodore Olson, now an attorney representing an ally of the plaintiffs, said 85 million songs and 400,000 movies are illegally copied and traded every day — a claim the other side hotly contests. Grokster and StreamCast, he added, “have very little use for any purpose that’s lawful.”

Glickman and others repeated that the entertainment industry supports technological innovation and its lawful uses.

Estimates of illegal use of P2P technology range from 75% to 90% of activity. But the Sony Betamax decision held that even less than 10% of legal use of technology can be sufficient to make the technology legitimate.

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