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The Supreme Court on Friday announced it will hear new cases that will insert it into cutting-edge debates over copyright and international law. The copyright case MGM Studios Inc. v. Grokster Ltd. and StreamCast Networks Inc. will test whether the peer-to-peer file transfer of music and movies has become so decentralized that the makers of Grokster and Morpheus file-sharing software are free of liability for copyright infringement. “The Grokster case presents the most important copyright issue to land before the Supreme Court in the Internet age,” said Gregory Garre of D.C.’s Hogan & Hartson, who heads the firm’s Supreme Court and appellate practice and has represented IP clients before the justices. Garre has no involvement in this case. The international law case Medellin v. Dretke takes the debate over foreign influences on high court jurisprudence to the next step: What happens when the International Court of Justice says U.S. courts should re-examine a death penalty conviction because it violated an international treaty signed by the United States? Dozens of briefs have already been filed in both cases, which will be argued in March. The court ordinarily announces new cases on Mondays, but sometimes moves up the announcement to the previous Friday to give lawyers extra time to prepare. The Court’s March calendar was sparsely filled, giving the justices added impetus to grant new cases quickly. Also on Friday, the Court granted review in San Remo Hotel v. San Francisco, a dispute over the Fifth Amendment’s takings clause, and Wilkinson v. Austin, an Ohio case on the standards for assigning inmates to “supermax” maximum security prisons. In Grokster, many segments of the entertainment industry � including a class of 27,000 music publishers and songwriters � have told the Court that file-sharing software is draining profits in the billions of dollars by making it unnecessary to purchase CDs or DVDs. The software enables computers to obtain music and movie files from other computers with little involvement by Grokster and StreamCast, which operates Morpheus. Their minimal involvement, as well as the fact that some of the file-sharing is noninfringing, led the U.S. Court of Appeals for the 9th Circuit to rule in favor of Grokster and StreamCast in August. But MGM asks the high court to reverse the decision, asserting that the copyright infringement would not be occurring without the software provided by the companies. “Copyright will soon mean nothing on the Internet” unless the enablers of the infringement can be held liable, said Donald Verrilli Jr. of Jenner & Block, lawyer for MGM Studios. Grokster’s allies assert that the negative impact has been overblown and that over time, as with past innovations, the industry will adjust to file-sharing and devise a way to profit from it without Court intervention. “The content companies have a long history of harnessing new technologies to their financial benefit,” said Gigi Sohn, president of Public Knowledge, a technology advocacy group. “We hope the Supreme Court will bear this in mind.” The Medellin death penalty case stems from the dramatic ruling in March by the international court � also known as the World Court � saying that the U.S. prosecutions of 51 Mexican nationals, including Texan Jose Medellin, should be re-examined because when they were arrested, they were not informed of their right to seek help from Mexican consular authorities. That right is embodied in the 1963 Vienna Convention on Consular Relations, which the United States fought for and signed. The World Court decision led an Oklahoma court to halt the execution of one of the Mexicans in May. But in the case of Medellin, the U.S. Court of Appeals for the 5th Circuit said the treaty claim was procedurally defaulted because Medellin did not raise it at the trial stage. The 5th Circuit cited a 1998 Supreme court ruling, Breard v. Greene, as the basis for its decision. The Breard ruling is viewed by some scholars as the high court’s most hostile decision toward international law and foreign courts. But in the years since then, and especially in the last two years, some justices have signaled greater willingness to let international norms � including foreign interpretations of treaties � play a larger role in their decision making. “The right to consular access is a right protected under customary constitutional law and must therefore be observed,” wrote Ohio State University law professor John Quigley in a brief before the Court on behalf of the European Union.

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