The Supreme Court has not yet decided whether to hear the
appeal, which had been widely expected.
The move comes in response to an August decision by the Ninth
Circuit Court of Appeals to throw out a copyright case brought by
the industry against Streamcast Networks Inc., the company behind
the Morpheus file-sharing software, and Grokster Ltd, on the
grounds that, while the companies provide the software used by
file-sharers to swap illegally copied digital files, the software
can also be used for legitimate purposes.
In the opinion, written by Judge Sidney R Thomas, there was much
reference to a 1980s decision on Sony's Betamax video recorder,
which, at the time, had been accused of infringing TV and movie
studios' copyrights. Sony won that case because the machine had
significant non-infringing uses.
On this occasion, said the judge, "The technology has numerous
other uses, significantly reducing the distribution costs of public
domain and permissively shared art and speech, as well as reducing
the centralised control of that distribution."
The Court was also hesitant to extend the scope of copyright law
to cope with the new technologies, as the entertainment industry
was urging.
In its filing on Friday, the industry urged the Supreme Court to
look again at the ruling. As the petition, filed jointly by major
players in the music and film industries, says, "This is one of the
most important copyright cases ever to reach this Court. Resolution
of the question presented here will largely determine the value,
indeed the very significance, of copyright in the digital era."
"The entertainment industry petition is a frontal attack on the
Betamax doctrine and threatens innovators of every stripe," said
Fred von Lohmann, senior lawyer with rights group the Electronic
Frontier Foundation, who successfully argued the case before the
Ninth Circuit.
The entertainment industry's petition was filed just one day
after Senator Orin Hatch announced that the Senate was not ready to
adopt his Inducing Infringement of Copyrights Act (formerly known
as the INDUCE Act), which would make anyone who "intentionally
induces any violation" of US copyright law liable for that
violation.
He suggested that Congress would return to the issue next
year.
"The entertainment industry appears to think that it can treat
the Supreme Court and Congress interchangeably in pushing for their
rewrite of copyright law," said von Lohmann. "But it's Congress
that writes the Copyright Act, not the courts. The Supreme Court
will not be eager to end-run Congress on this complex legislative
issue."
