WASHINGTON-Technology makers and service providers should not be responsible for their customers’ actions, especially if the service providers are hurt financially from those actions, CTIA argued in a brief before the U.S. Supreme Court.
The court is set to hear oral argument March 29 in the case of Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. The court case pits the movie industry against Grokster, a peer-to-peer software provider. MGM charges Grokster software enables people to be able to download movie content illegally.
“Our joining this effort can be viewed as the wireless industry’s coming of age as a broadband service provider. When Verizon received the subpoenas, we were not in this sphere. Now national carriers have either deployed or announced plans for national deployment of broadband,” said Michael Altschul, CTIA senior vice president and general counsel.
CTIA filed a friend-of-the-court brief supporting Grokster’s position.
“The judicial expansion of secondary copyright liability advocated by petitioners is precisely the wrong approach. It is simply impossible for the U.S. Supreme Court to craft a rule that will target only a particular business model connected with a specific technology without the threat that the new doctrine will be used by copyright owners-reputable or otherwise-to impose judicially created duties on legitimate businesses and technologies,” according to a brief filed by CTIA, the U.S. Telecom Association, the U.S. Internet Industry Association, AT&T Corp., BellSouth Corp., MCI Inc., Savvis Communications Corp., SBC Internet Services Inc., Sun Microsystems Inc. and Verizon Communications Inc.
This is not the first time Verizon has been involved in a peer-to-peer lawsuit. Verizon was in a celebrated dispute with the Recording Industry Association of America. RIAA wanted Verizon to give it the names of its users who illegally downloaded music. Verizon refused.
The movie industry, after seeing the downloading that occurred using peer-to-peer software in the music industry, is concerned this could spill into other forms of entertainment.
CTIA argues that Congress, not the courts, should decide what is a violation of copyright law.
“Only Congress has the institutional capacity to find facts, weigh countervailing economic interests, and arrive at an acceptable approach that will protect copyright owners, while also avoiding excessive restrictions on technological development. Congress works with a scalpel; the common law is a blunderbuss. Only a statute can precisely define liability in such a way as to target only truly culpable offenders; create exemptions or safe harbors protecting those parties (such as libraries) or technologies (such as broadband) least threatening or most in need of deployment incentives; and carefully tailor remedies to be precise and effective,” said CTIA in its brief.
CTIA makes it clear that its members too can be victims of illegal downloading. With their increasing popularity, carriers are gaining more revenue from services other than voice. One of the most popular services is ringtones. If these are downloaded illegally, carriers lose money.
“The people who are breaking the law are the individuals who are doing the file sharing. It is not the carriers, their networks, or the devices that are being used,” said Altschul. “We too are the victims of file sharing but that doesn’t mean that the law should be changed by the Supreme Court.”
The wireless industry’s entry into this issue did not surprise one intellectual-property expert.
“It is a miniaturized replay of all of the issues that exist in the desktop space. It is miniature only because of bandwidth issues and that is changing,” said Bruce Sunstein, founding partner of Bromberg & Sunstein L.L.P., an intellectual-property law firm in Boston. “It is all of the same issues over again.”
The technology industry does not want the entertainment industry to have veto power over innovation.
“This case is about the right to innovate without a fear of being dragged into court. That is what has driven this country,” said Michael Weiss, chief executive office of Streamcast Networks Inc., which developed the Morpheus peer-to-peer software. “This gets turned on its head if Hollywood becomes the technology gatekeeper.”
Others who support the Grokster/Morpheus position joined Weiss recently at a press conference sponsored by Public Knowledge, a public-interest firm. “The technology these guys invent makes the entertainment industry even richer,” said Gigi Sohn, president of Public Knowledge. “The content industry needs technology as much as vice versa.”
“That long shadow on innovation will slow it down-grind it to a halt,” warned Mark Cooper, research director of the Consumer Federation of America.
CTIA is trying to find ways to protect copyrights, said Altschul.
“We can still recognize the importance of digital rights management and be working on protecting copyrights through DRM without changing the law in a way that would make carriers responsible for their customers’ behavior,” said Altschul. “CTIA through the Wireless Internet Caucus is engaged in pursuing DRM solutions.”
Sunstein said DRM is a good example of historical precedent. Technology always comes along to protect copyrights-eventually.
“The history of communication media has shown us that copyright is always a rear-guard activity. Innovation always comes first and then copyright protection. Oftentimes the innovation is new formats for distributing copyrighted information. If people are getting the copyrighted information for free, something needs to be changed. That is the principal of intellectual property-nothing should be free,” said Sunstein.
