March 30, 2005
WASHINGTON - Even if entertainment companies win their Supreme Court battle for new authority to protect movies and music on the Internet, lawyers say it won't be easy to shut down the decentralized computer links used to trade songs and films.
However, entertainment executives say expanded grounds for lawsuits are needed to discourage inventors from profiting from cool gadgets of the future that could be used for stealing.
"This sort of thing is out there now and you can't go - and I may be wrong about this - but I don't you think you can go into people's homes and pull (software) out, or that anybody's likely to do that," said Theodore Olsen, the former U.S. solicitor general now working for entertainment companies. "But it would be an important statement; an important point here is to stop the worst of the activity, stop the people who are making money."
Richard Taranto, the lawyer for software-maker Grokster Ltd., told the Supreme Court on Tuesday that modern file-sharing tools like Grokster's are "autonomous communications products," underscoring the evolution of such software since the entertainment industry's landmark victory in July 2001 shutting down the centralized Napster online service.
Taranto said the case presently facing the Supreme Court is "critically different" from the Napster legal fight. He argued that since Grokster isn't directly involved in the activities of its customers illegally swapping music and movies online, it can't be sued for violating copyrights.
Justices appeared divided on important issues during courtroom arguments. In a lively hourlong debate, the court openly worried that new lawsuits could stunt the next iPod. Justices also wondered aloud whether lawsuits against manufacturers might have discouraged past inventions like copying machines, videocassette recorders and MP3 music players - which consumers can use to make illegal copies of documents, movies and songs.
Justice Antonin Scalia said a ruling for entertainment companies could mean that if "I'm a new inventor, I'm going to get sued right away." Scalia, 69, referred to the company as "Grakster, whatever this outfit is called."
The entertainment industry's lawyer, Donald Verrilli Jr., maintained that, unlike Grokster's customers, most iPod buyers are honest consumers who pay for their digital music, effectively shielding Apple Computer from such copyright lawsuits.
But Justice David H. Souter said even iPod users will steal music if they believe they can. Souter questioned why the entertainment industry wants to sue Grokster but under the same legal theory wouldn't also sue Apple so aggressively the iPod's developer would "lose his shirt."
"I know perfectly well if I can get music on my iPod without paying that's what I'm going to do," said Souter.
Yet the court appeared deeply troubled by Grokster's efforts to encourage rampant Internet piracy and profit from it. Verrilli called its software "a gigantic engine of infringement" thieves use to steal 2.6 billion songs, movies and other digital files each month.
Justice Anthony M. Kennedy pressed Grokster's lawyer on whether profits from trafficking in stolen property can rightfully be used to help finance a young technology business. "That seems wrong to me," Kennedy said.
Regardless of the outcome, it still won't be legal to download copyrighted materials over the Internet without permission, though tens of millions of computer users do it each day. A ruling won't affect thousands of copyright lawsuits filed against Internet users caught sharing music and movies online.
Besides the lawsuits, the entertainment industry has deliberately polluted file-sharing networks with poor-quality copies of songs and falsely named files, among other tactics, to frustrate Internet thieves.