Librarians to P2P critics: Shhh!
By Declan McCullagh
CNET News.com
September 25, 2003

In a hotly contested lawsuit before a federal appeals court, two peer-to-peer companies are about to gain a vast army of allies: America's librarians.

The five major U.S. library associations are planning to file a legal brief Friday siding with Streamcast Networks and Grokster in the California suit, brought by the major record labels and Hollywood studios. The development could complicate the Recording Industry Association of America's efforts to portray file-swapping services as rife with spam and illegal pornography.

According to an attorney who has seen the document, the brief argues that Streamcast--distributor of the Morpheus software--and Grokster should not be shut down. It asks the 9th Circuit Court of Appeals to uphold the April decision by a Los Angeles judge that dismissed much of the entertainment industry's suit against the two peer-to-peer companies.

Among the groups signing the brief are the American Library Association (ALA), the Association of Research Libraries, the American Association of Law Libraries, the Medical Library Association and the Special Libraries Association. The American Civil Liberties Union, in one of the group's first forays into copyright law, has drafted the brief opposing the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA).

A central argument of the brief is that the district court got it right when applying a 1984 Supreme Court decision to the Internet. That decision, Sony v. Universal City, said Sony could continue to manufacture its Betamax VCR because a company cannot be a contributory (copyright) infringer if, as is true in this case, it has had no direct involvement with any infringing activity.

The amicus brief will make the point that we are not supporting the wrongful sharing of copyrighted materials, ALA Executive Director Keith Michael Fiels wrote in an internal e-mail seen by CNET News.com. An amicus brief is one filed by a third, uninvolved party that comments on a particular matter of law. Instead, we believe the Supreme Court ruled correctly in the Sony/Betamax case. The court in that case created fair and practical rules which, if overturned, would as a practical matter give the entertainment industry a veto power over the development of innovative products and services.

The librarians' entry into the political fray over whether file-swapping networks should be shut down or not may complicate the RIAA's public relations strategy. The music industry group has been taking increasingly aggressive legal action against alleged infringers and has told Congress that a significant percentage of the files available to these 13 million new users per month are pornography, including child pornography. The RIAA could not immediately be reached for comment Thursday.

The ACLU said Thursday that the brief argues that peer-to-peer networks are speech-promoting technologies that have many noninfringing uses. If the MPAA and the RIAA succeed in shutting down peer-to-peer networks or making them more centralized, the precedent could create undesirable choke points that could be used to monitor Internet users, the ACLU said.

The RIAA and MPAA jointly filed the lawsuit in October 2001, launching what has become the most widely watched Internet copyright case since Napster. Their original complaint accuses Streamcast and Grokster of earning advertising revenue by attracting millions of users to their systems by offering them a treasure trove of pirated music, movies and other copyrighted media.


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