March 28, 2005 4:00 AM PST
Top court to hear landmark P2P case Tuesday
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first. The studios and labels say that the peer-to-peer networks created by Grokster's and StreamCast's software could survive and thrive even if the companies were shut down.
In April 2003, this led a Los Angeles federal court judge to say that unlike Napster, Grokster and StreamCast were not legally liable for piracy performed using their software.
"Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights," Judge Stephen Wilson wrote in that decision. A 9th Circuit Court of Appeals agreed in a ruling last August, and the Supreme Court agreed to hear the entertainment companies' appeal this year.
The appeal has brought dozens of organizations out of the woodwork, arguing all sides of the case. The U.S. Solicitor General's office is supporting the entertainment companies, as are groups ranging from the Christian Coalition to the National Baseball League.
The file-swapping companies are backed by big consumer electronics companies, venture capitalists and the American Civil Liberties Union, while consumer groups argue that protecting peer-to-peer networks is a free speech issue.
Who's hurt, and does it matter?
A host of studies have come out during the past year trying to gauge the real effect of file-swapping networks, where millions of copyrighted songs, movies and games are traded freely every month. Some say they hurt the music business; some say there is little if any measurable impact.
Rick Carnes, a Nashville, Tenn.-based songwriter who has penned tunes for Garth Brooks and others, says he doesn't need the studies to see that peer-to-peer swapping has been a problem. The professional songwriting business has been devastated in the last few years, as income from record sales has dropped substantially, he says. Music publishers who once kept songwriters on staff have consolidated and laid off staff, and individual writers have seen their income plummet.
"The guy who lives across the street from me was a professional songwriter, but he's selling insurance now," Carnes said. "It's that bad."
These points, along with the record industry's contention that the music market in the United States has lost more than 12 percent of its value since 1999, aren't academic. The Supreme Court has historically been loath to protect industries solely against the consequences of technology change, but it has tried to strike a balance between encouraging technological advance and protecting copyright holders.
Since the Sony Betamax decision in 1984, the court has done that
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