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Spirited Debate Marks Grokster's Day in Supreme Court

30 Mar, 2005 By: Erik Gruenwedel

Combatants in the MGM v. Grokster copyright infringement case emerged upbeat following Tuesday's oral arguments before the U.S. Supreme Court from lawyers representing both entertainment and technology concerns.

The Supreme Court will decide whether the Ninth Circuit Court of Appeals in San Francisco in December erred in concluding that Grokster should be immunized from copyright liability in the dissemination of music, movies and pictures on the Internet.

MGM v. Grokster has been called the Betamax case of the 21st century because lower courts have held that file-sharing services, including Grokster and Morpheus, have substantial noninfringing uses and therefore cannot be held liable for how consumers use them.

In 1984, the Supreme Court found that VCRs, although they could be used to copy movies for sale, also had substantial non-infringing uses, such as consumer time-shifting. The decision gave hardware manufacturers the legal green light to keep producing VCRs — the precursor to such devices as the DVD recorder and the iPod.

“Here we have a business [Grokster] where 90-plus percent of the use is unlawful infringement, draining billions of dollars out of the system, that ought to go to legitimate creators of the material,” said MGM lawyer Donald Verilli in post-argument comments supplied by the Recording Industry Association of America (RIAA).

“If people leech off the system for free, then creators of copyright [material] will not be compensated, and the movies and music will not get made,” said Dan Glickman, CEO of the Motion Picture Association of America (MPAA). “It's as simple as that.”

Justice Stephen Breyer earlier in court had questioned Verilli whether the inventor of the next iPod could have assurances he or she would not be sued at some point down the road for copyright infringement, according to information provided by the Electronic Frontier Foundation (EFF), a San Francisco-based civil liberties group supporting Grokster.

Legal experts said the justices appeared worried about protecting innovation, but they were also concerned about the tacit encouragement file-sharing services gave people to infringe copyrighted material, even if the technology has substantial non-infringing uses.

“I think the justices asked all the right questions,” said Fred von Lohman, senior intellectual property attorney with the EFF. “It's way too early to tell what the decision will be. It wasn't a matter of looking up there and counting up the votes on one side or the other.”

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