P-to-P precedents peer down the years

Questions about two copyright cases and two technologies, separated by almost 20 years of technological innovation, dominated an appeals court hearing on Tuesday that pitted peer to peer (P-to-P) file sharing software companies against leading entertainment industry groups.

Speaking before a packed courtroom, a three-judge panel of the Ninth USCircuit Court of Appeals focused on two precedent-setting cases - a 1984 Supreme Court ruling in Sony vs. Universal City Studios and a 2001 ruling by the Ninth Circuit in A&M Records vs. Napster - in questions to attorneys.

The case tests whether technology companies can be held liable for the misuse of their products, according to those involved.

"It's anybody's game," a spokesperson for the Recording Industry Association of America (RIAA), Jonathan Lamy, said. "It's impossible to predict how they might rule."

The RIAA is one of the plaintiffs along with the Motion Picture Association of America (MPAA) and the National Music Publisher's Association of America (NMPA). The groups are suing P-to-P software companies Grokster and Streamcast Networks, which makes the Morpheus P-to-P software.

At the heart of the legal debate, participants agree, is a precedent set in the 1984 Sony case, commonly referred to as the "Betamax case", after Sony's home video recording technology.

In that case, the Supreme Court ruled against Universal City Studios, deciding that Sony could not be held liable for violating the copyright of media companies because the Betamax technology had "substantial non-infringing uses" that did not result in copyrights being violated.

In the hearing, lawyers for Grokster and Streamcast cast their clients' software as a latter-day Betamax: technology that could be used for illegal infringement of copyrighted material, but which had many other, legal applications.

"It was clear that the court understood the parallels between this case and the Sony Betamax case," said Fred von Lohmann, senior intellectual property attorney at the Electronic Frontier Foundation, who represented Streamcast before the court.

The majority of the judges' questions were about the Sony case, he said.

Von Lohmann and others see the case against P-to-P companies as an effort by the entertainment industry to overturn the precedent set in the Betamax case, which would give copyright holders far greater authority to impose restrictions on the use and development of new technology. The RIAA's Lamy acknowledged that there were "thoughtful exchanges" between the judges and lawyers on both sides about the applicability of the Sony Betamax case.

However, contrary to the claims of the defendants, he denied that the plaintiffs were trying to stamp out new technology. "We're not trying to shut down these [file sharing] services or halt P-to-P," he said. "We just want them to respect the copyrights of our members."

The entertainment companies see software such as Grokster and Kazaa in the same light as Napster, the first file-sharing network that, in a 2001 ruling, was found to violate the rights of copyright owners.

In that case, the Court ruled that the Napster network, which relied on centralised servers to connect file sharers with those seeking to download files, did directly infringe the rights of copyright holders and that the company contributed to copyright infringement by encouraging and assisting users to swap copyrighted material.

"We argued that these are businesses that are built on infringement, but that technology could stop the infringement from happening," Lamy said. In briefs to the court, the plaintiffs argued that P-to-P companies could stop the distribution of copyrighted materials on their network just like they halt the distribution of pornography or viruses, according to information provided by the MPAA.

Von Lohmann doubts that the court would impose such a condition on the P-to-P software makers.

Hesaid that filtering was adopted by Napster in the face of a court injunction for infringement.

However, the final decision could take one of a number of forms, from a strict upholding of the Sony Betamax ruling, to a new interpretation of that ruling that sets forth a formula by which proper use and improper use of a technology can be weighed.

"I think the questions asked today clearly indicate that the judges understand that the entertainment industry position is at odds with the Sony position," he said.

Whatever the outcome of the Ninth Circuit Court of Appeals ruling, the P-to-P case, or another like it, was likely to end up in the Supreme Court in the next five years, Von Lohmann said.

"These questions are too pressing," he said.