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WASHINGTON — Young U.S. Supreme Court law clerks, who help their justices screen cases and draft opinions, may be assigned a new task this week: explaining Grokster and Morpheus to their bosses, average age 70.7. The intensely watched copyright infringement case Metro-Goldwyn-Mayer Studios v. Grokster and StreamCast Networks, 04-480, is on the agenda for the high court’s private conference on Friday, along with dozens of other cases in which the court may grant or deny review. At issue is whether Grokster and Morpheus operator StreamCast can be held liable for the copyright infringement that their software permits, through “peer-to-peer” swapping of music and movies between individual computers. Even before review has been granted, the case has drawn a dozen amicus curiae briefs highlighting its importance, as well as the technological, even generational, divide it represents. Will the aging justices, some of whom still are suspicious of all things digital, understand the technology involved in the Grokster case, as well as the seemingly insatiable appeal of free downloads to under-30 consumers? “The law clerks will, I hope, and they can explain it to the justices,” jokes Jay Rosenthal of Berliner, Corcoran & Rowe in D.C., who filed a brief in the case for the Recording Artists’ Coalition and a hastily arranged assortment of music notables from Don Henley to the Dixie Chicks and Sheryl Crow. “There are some issues that are tough to get recording artists together on,” says Rosenthal, who has represented musicians for years. “But on this copyright issue, across the board, it’s easy. This is how they get paid, how they provide for their families. They have a visceral disgust for the free downloading. It’s like a shot in the heart.” And a big shot in the wallet, too, according to the numerous briefs filed asking the court to take the case and rule against Grokster and Streamcast. In addition to major movie studios and record companies, a certified class of 27,000 music publishers and songwriters is challenging the file-swapping companies. With more than 2 billion infringing music downloads occurring monthly, and 600,000 movie downloads daily, Grokster and co-defendant StreamCast are “inflicting catastrophic, multibillion-dollar harm � that cannot be redressed through lawsuits against the millions of direct infringers using those services,” wrote Donald Verrilli Jr. of Jenner & Block in D.C., who represents MGM Studios, the lead appellant before the high court. Unless Grokster can be held liable, Verrilli continued, “copyright will soon mean nothing on the Internet, and the incentives on which our copyright system rests will be imperiled.” Not quite, say Grokster’s supporters, who caution against the Supreme Court’s jumping into a controversy that can be resolved by the marketplace or by Congress. Sen. Orrin Hatch, R-Utah, sponsored a bill that would have dealt with the download issue, but negotiations broke down in October in the pre-election rush to adjourn. A day later, Grokster’s brief states accusingly, MGM went to the Supreme Court, “apparently disappointed with the pace of the legislative process.” Grokster lawyer Fred von Lohmann of the Electronic Frontier Foundation says his adversaries are “treating Congress and the courts interchangeably” as avenues to fix their problem. “This is an issue Congress should decide, not for the court to micromanage.” Grokster’s supporters cite a century’s worth of technological developments in the entertainment industry to urge the court to keep out of the debate. “At various moments in U.S. copyright history, courts have turned away from the temptation to intervene in the process through which new technologies are developed and adopted, with uniformly happy results,” says American University Washington College of Law professor Peter Jaski in a brief for the Computer and Communications Industry Association. Prime example: the movie industry’s effort to block home video recorders. The Supreme Court did not go along, leading to a thriving movie industry with revenues from theater attendance and video rentals. In the 1984 case Sony Corp. of America v. Universal City Studios, the Supreme Court allowed for “fair use” video recordings and said VCR makers could not be held liable so long as the technology was capable of “substantial noninfringing uses.” The 1984 Sony decision formed the basis of the Grokster ruling by the Ninth Circuit U.S. Court of Appeals that is now before the Supreme Court. The Ninth Circuit shut down Grokster’s predecessor, Napster, in 2001, but it viewed Grokster more positively, in part because of its more decentralized file-sharing technology. Whereas Napster maintained servers that involved it more directly in the file-sharing, Grokster and StreamCast employ users’ computers to store indices of shared files. They also eliminated log-in features that would have given them more ability to block infringement. Quoting the district court opinion, Ninth Circuit Judge Sidney Thomas asserted that even if Grokster and StreamCast “closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.” Thomas was joined by Judges John Noonan and Robert Boochever. The August ruling also noted that, as with VCRs, file-sharing facilitates substantial “noninfringing uses,” including downloading music by artists who do not object to file-sharing. “In short, once the software has been downloaded by users, (Grokster and StreamCast) have no involvement in, or ability to control, what it is used for,” says the Grokster brief. But file-sharing opponents say Grokster and StreamCast should not be rewarded for designing software that allows them to wash their hands of infringement while reaping advertising profits from the infringement at the same time. “The Ninth Circuit has immunized Grokster and StreamCast from copyright liability for the millions of acts of infringement that occur on their services every day, and that could not occur but for the existence of their services,” says Verrilli’s brief. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Note: Goldstein & Howe is one of the firms representing Grokster and StreamCast Networks in 04-480. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C..

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