Hollywood and the music industry face off against the heavy hitters of the high-tech industry in a Supreme Court hearing tomorrow, seen as a crucial test of free use of technology and the battle against digital piracy.
Some of the biggest US companies and trade groups have taken sides in the case, "MGM v. Grokster," which seeks to determine whether peer-to-peer (P2P) Web sites where music and video can be freely traded can be held liable for copyright infringement.
Oral arguments are to be made tomorrow in the highest US court, with a decision expected in June.
The case has attracted widespread interest, with over 50 supporting briefs filed on behalf of prominent firms including Intel, Yahoo and Apple; the US government; groups as diverse as Consumers Union, the National Basketball Association and Business Software Alliance; and musicians such as Elvis Costello and Avril Lavigne.
28 studios, music firms
Some 28 Hollywood studios and music firms that sued file-swapping services Grokster and Morpheus argue that they need to be able to shut down the networks to crack down on rampant piracy that threatens the music and cinema industries and creators of virtually any creative work that can be illegally copied over digital networks.
But on the other side, representatives of Silicon Valley and the rest of the high-tech industry argue that holding creators of technology liable for any illegal use would set a chilling precedent.
"This is not about whether file sharing is copyright infringement, but about who should be held responsible, and in particular whether the technology companies are responsible," said Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation, which represents the defendants.
Up to now, courts have ruled in favor of the technology industry, relying on a 1984 Supreme Court precedent known as the Betamax case -- resulting from a similar dispute over the liability for copyright infringement of Sony's videocassette recorder.
Innovation at risk
"We think this case has always been fundamentally about innovation, and the entire technology sector, not just peer-to-peer," von Lohmann said.
"Allowing entertainment companies to sue technology innovators for every infringement will chill innovation and retard the entire sector ... the Betamax decision has been with us for 21 years, and the technology and entertainment industries have flourished in that time. We see no reason to turn back now."
But Stanley Pierre-Louis of the Recording Industry Association of America, which has been in a pitched battle to curb piracy, said he hopes the court will take a different view.
"We are not attacking the technology, we are attacking those who hijack technology for illegitimate gains," he said.
If companies like Grokster and Morpheus are allowed to operate unchecked, Pierre-Louis said, "there would be no effective protection for copyright. In their world, everything would be free. And we would have a decrease in the amount invested in copyrighted works, because if no one is paying for it, there is no reason for anyone to invest more money it."
Some technology groups have filed briefs that support neither side, but urge the court to uphold the Betamax precedent while leaving open options to curb piracy.
A brief filed by the ad-hoc Net Coalition said the members including Microsoft, Motorola and RealNetworks "do not condone -- indeed, they strongly condemn -- the use of peer-to-peer technologies to violate copyright law. Neither, however, do [these members] support the substantial broadening of the standards for secondary liability that petitioners urge this Court to adopt."
The brief said the court must consider the impact on "technological innovation, free expression and democratic values online" that are at stake.
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