With A Little Help From Their 'Friends,' Studios, Labels, Hope To Sway Court
In August, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously backed a lower court ruling that Grokster, StreamCast Networks, which makes the Morpheus service, and MusicCity.Com are not responsible for users who illegally copy or share content such as music and movies over their services.
Monday's friend-of-the-court briefs were submitted by what is the largest ever-assembled coalition of movie and music organizations, property rights advocates, U.S. government officials, state Attorneys-General, legal professors, online media companies, and other copyright owners.
A friend-of-the-court or amici brief, according to online encyclopedia World2Net.com, is a letter from an adviser to the court on some matter of law from one who is not a party to the case--usually someone who wants to influence the outcome of a lawsuit involving matters of wide public interest.
Among the government and state officials issuing briefs were Paul Clement, acting solicitor general of the U.S. Department of Justice, B. Olsen, former Counsel for the Defenders of Property Rights, Senators Patrick Leahy (D) and Orrin G. Hatch (R), from Vermont and Utah, respectively, as well as 39 state Attorneys-General (notable absences were New York, Connecticut, and California).
"The position of the United States is that the court of appeals erred in adopting an unduly narrow view of the scope of secondary liability for copyright infringement," Solicitor General Clement stated in the brief. "The most salient considerations are the extent to which the defendant's product is, or reasonably will be, utilized for infringement, and, relatedly, the extent to which the defendant's particular business depends upon such illicit uses."
Several law professors and economists from many of the nation's top law schools issued amici briefs, including professors from Harvard Law School, Yale Law School, Stanford University, the University of Pennsylvania Law School, New York University Law School, Georgetown University Law, Fordham Law School, and no fewer than seven professors from the University of Chicago.
Copyright-owner organizations such as the Association of American Publishers, the Independent Film & Television Alliance, the Association of Independent Music Publishers, the National Academy of Recording Arts and Sciences, the Office of the Commissioner of Baseball, the National Basketball Association, the National Football League, and music industry trade associations such as the Gospel Music Association and the Hip-Hop Summit Action Network, also issued briefs urging the Supreme Court to overturn the lower court's ruling.
Undersigned music industry artists included the Dixie Chicks, the Barenaked Ladies, Sum 41, Sheryl Crow, Avril Lavigne, Dido, Sarah McLachlan, Reba McEntire, Brian Wilson of the Beach Boys, Kenny Rogers, and Tom Jones. The lower court rulings were largely based on the precedent set by the infamous 1984 "Sony Betamax" case between Sony Corp. and Universal City Studios, when the Supreme Court decided that Sony was not responsible for copyright violations committed by users of its Betamax video recorders, primarily because the technology had significant uses that did not infringe on copyright owners' trademarks. Now the Supreme Court looks set to reevaluate many of the same arguments discussed in that case.
But Grokster and StreamCast are not without their defenders, either. For one, the file-sharing companies have the considerable muscle of the Consumer Electronics Association (CEA) on their side. Earlier this month, at the Consumer Electronics Show in Las Vegas, CEA Chairman Gary Shapiro underlined the importance of preserving consumers' non-commercial home recording rights in fostering technology advancement.
"Increased access to this technology will shrink the digital divide and produce a renaissance in arts, science, music, academics and creativity across the entire world," Shapiro wrote in a letter to conference attendees. "Copyright owners must resist the temptation to restrict technology. If successful, restrictions will deprive the public of equal and fair access to information, entertainment, and education."
Both Grokster and StreamCast are standing by the Betamax defense alluded to in Shapiro's letter. The Supreme Court is set to hear the case on March 29. No decision is expected until July, at the earliest.