February 28, 2005
LOS ANGELES - Religious and other conservative groups have shown little love for Hollywood or the recording industry over the years, decrying everything from explicit rap lyrics to Janet Jackson's bared breast at the 2004 Super Bowl.
But a cadre of those groups are stepping up to back the entertainment industry in its moment of need: a high-stakes battle against online file-sharing services that has reached the nation's highest court.
File-swapping services make pornography easily accessible to minors, the social conservatives submit. The entertainment companies, meanwhile, blame sharing for declining sales and lost revenue.
An unlikely alliance thus formed.
"Hollywood is definitely a strange bedfellow to most of us," said Jim Backlin, vice president of legislative affairs for the Christian Coalition of America. "Our goal was to cut down child pornography and other kinds of pornography, and if for some reason we were allied with the Hollywood types this time, so be it."
On the other side, the file-sharing companies have also found unlikely allies, including libraries concerned that tighter copyright controls would stifle free speech.
The Supreme Court is scheduled to hear arguments March 29 in the Internet file-sharing case, with briefs from defendants and their allies due on Tuesday.
The case stems from a lawsuit filed by Hollywood movie studios and recording companies against Grokster Inc., which distributes the Grokster peer-to-peer software, and StreamCast Networks, which runs Morpheus. Lower courts have ruled that the companies are not liable for what computer users do with their software, even if it's illegal.
Literally billions of dollars are at stake.
On the entertainment side of the dispute are online services that legally sell music or movies, including Napster Inc., MusicNet and CinemaNow as well as professional sports leagues including the National Football League and the National Basketball Association that worry about unauthorized distribution of their broadcasts.
Attorneys general for 39 states and Guam, meanwhile, have sided with the social conservatives, raising concern over the potential for minors to stumble upon pornography.
The federal government also filed a brief. It argues that while file-sharing technology has legitimate uses, Morpheus and Grokster profit by encouraging computer users to copy music and films without paying for them.
Not to be outdone, file-sharing companies have support from a big slice of the technology sector.
"If Hollywood gets its way, they'll be granted de facto control over, frankly, the vast majority of communications and technology today," said Will Rodger, director of public policy for the Computer & Communications Industry Association, which represents Sun Microsystems Inc., Verizon Communications Inc. and 28 other companies.
The Consumer Electronics Association, which represents upward of 1,700 technology companies, including Sony Corp., Intel Corp., TiVo Inc., is also planning a brief in support of Grokster and StreamCast.
The companies fear a ruling against the file-sharing services would leave them susceptible to lawsuits if they develop devices or technologies not approved by the entertainment industry.
They point to a long history of copyright holders trying to quash new distribution models or products, going back to the player piano and including the VCR, MP3 player and digital video recording pioneer ReplayTV.
"This is the Hail Mary pass on the part of the content industry to try to put the entire technology sector under their thumb," said Fred von Lohmann, an attorney with the Electronic Frontier Foundation, which is representing StreamCast. "That's something they could never get Congress to do, but that's precisely what they would like the Supreme Court to do for them."
Four other trade associations officially are not supporting either side but oppose tinkering with established copyright law.
"We think there's a distinction between analyzing the legality of a technology and analyzing the legality of a company or a company's behavior," said Jonathan Potter, executive director of the Digital Media Association, which counts Apple Computer Inc. and Microsoft Corp. among its members. "We don't think companies who create technology should be liable for other uses of the technology."
The outcome of the case and its impact on current copyright laws will undoubtedly shape the ongoing relationship between the entertainment industry and companies that make the products people use to watch movies or listen to music.
Mitch Bainwol, chairman of the Recording Industry Association of America, says the industry understands its future is intertwined with the technology sector.
"We have no interest in getting in the way of legitimate business," Bainwol said. "We simply say that you have to find a balance ... all of innovation, both technological innovation and creative innovation, has to be protected."
In building a wider coalition of support, Bainwol said he sought to find a way to ensure that the "mainstream of America would embrace our position."
Bainwol's predecessor, Hilary Rosen, doubts a cozier relationship between conservatives and the entertainment industry will ensue.
"There is a bizarre but cool irony to the conservatives who hate the media we produce but defend to the death our right to make money when we produce it," added Rosen, whose tenure at the RIAA coincided with the 1999 congressional hearings over violent lyrics that followed the Columbine High School slayings.
Several artists, including Don Henley, Avril Lavigne, the Dixie Chicks and Sheryl Crow, are lending their names to the entertainment industry's case, saying they lose potential royalties to file-sharing.
It's unclear whether any well-known performers will step forward in support of the defendants.