By Richard Menta- 11/07/01
In a press release issued yesterday, the Electronic Frontier Foundation (EFF) announced that it will join the defense team of Music City, parent company to the Morpheus P2P program. In what the group calls "a crucial case testing the limits of Hollywood's power to control new technologies", the EFF has decided to come to the aid of the Tennessee-based company.
Along with its FastTrack technology-based brethren KaZaa and Grokster, Music City was named in a suit last month by 29 companies in the record and movie industries for copyright infringement.
The suit, brought forth by the two industry lobby arms the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), claims the FastTrack sites are just another flavor of Napster whose sole goal is to profit from the theft of intellectual property. The EFF, a civil liberties organization focused on defending the legal rights of the digital world, feels otherwise.
"This case is about the freedom of technologists to innovate and the public's right to communicate," stated EFF Senior Intellectual Property Attorney Fred von Lohmann in the release.
Andrew Bridges, Music City's legal representative agrees. "The question is whether Hollywood media powerhouses will be able to use copyright as a pretext for seizing control over technology development."
Because the FastTrack-based programs also support the trading of video files, something Napster never did, they have drawn the ire of the movie industry. But movie files traded on the network tend to be of middling quality with screen sizes no more than a few inches square. File sizes are large too. A full-length movie frequently requires over half a gigabyte of code to be downloaded and stored.
The movie industry is aware that over the coming years technology will improve quality and are hoping to nip the trading of movie files in the bud early. The joint lawsuit asks for a permanent injunction that will shut down the three services, demands penalties of $150,000 for each work infringed, and looks to claim any profits these companies might have realized during their existence.
Because Music City is the only one of the three companies that is US-based (KaZaa is out of Holland and Grokster is run from the Caribbean island of Nevis) it is more vulnerable to US court decisions. The EFF has focused on the movie trading side of the Music City case for its defense, probably because it is more directly related to precedent set in the Sony VCR case of 20 years ago.
The EFF press release states " In the early 1980s, the motion picture industry tried to outlaw VCRs by claiming that Sony should be held liable for the infringing activities of Betamax users. The U.S. Supreme Court rejected this effort to stifle innovation, holding that so long as the technology is "capable of substantial noninfringing uses," vendors can build and sell it without fear of copyright litigation from entertainment companies. The lawsuit against MusicCity will likely be the pivotal test for the Betamax rule in the Internet context".
U.S. District Court Judge Marilyn Hall Patel in Napster's preliminary hearings already rejected this "betamax" defense, claiming Napster possessed too few non-infringing uses to qualify. But the FastTrack-based companies are also structurally different from Napster, avoiding a centralized server that made Napster an active participant of the trading taking place on its network. These companies claim their presence is not necessary for the FastTrack network to exist. The movie and record industries have countered that notion, claiming there is evidence the involvement of these companies on the network are not as passive as they claim.
As Andrew Bridges pointed out, Hollywood " learned how to profit from the new videotape recorder technology" and that newer Web technology should be given the same opportunity to eventually enrich the industries trying to shut them down. This case is being closely watched by software developers as a potential watershed case.
"This is getting closer and closer to a case where they're just making software," Kelly Truelove, an independent peer-to-peer industry analyst, told CNET reporter John Borland. "To a technologist, this (case) is quite significant."
The case, captioned Metro-Goldwyn Mayer v. Grokster, No. 01-CV-8541 SVW, is before Judge Stephen V. Wilson, U.S. District Court Judge for the Central District of California in Los Angeles.
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