Judge orders P-to-P services trial

Three popular peer-to-peer (P-to-P) file swapping services will soon have a jury of their peers judging whether they are guilty of copyright infringement charges, following a federal judge's order Monday that they stand trial in a case lodged against them by the recording and motion picture industries.

P-to-P services Morpheus, Grokster and Kazaa are due to come under jury scrutiny beginning Oct. 1 following U.S. District Court Judge Stephen Wilson's ruling Monday that the defendants' motion for a summary judgment was premature.

Attorneys for the companies that run the services filed the summary judgment motion hoping to qualify for a "Betamax defense." This defense argues that the noninfringing uses of a technology should shield it from a copyright infringement suit, given that the technology has legitimate uses.

The precedent for the Betamax defense was set in the Sony Corp. vs. Universal City Studios case in which the motion picture industry tried to outlaw Sony's Betamax VCRs because they could potentially be used to make illegal copies of movies. In 1984, the U.S. Supreme Court ruled, however, that although some VCR uses infringe on copyright, that does not justify a ban on the technology.

While lawyers for the P-to-P defendants expressed disappointment that the judge delayed ruling on the motion, they indicated that they would press the Betamax defense during the jury trial.

Civil liberties group the Electronic Frontier Foundation (EFF), which is helping represent Morpheus, pointed out that the software allows users to trade a variety of files, including shareware programs and public domain texts, not just copyright-protected works.

For the recording and motion picture industries, however, the widespread popularity of these services, which have only increased since the demise of the free-for-all version of Napster Inc., represent a serious threat to business. Scores of copyright-protected songs, movies and other works are being traded daily, for free. The Recording Industry Association of America Inc. (RIAA) recently indicated online piracy as a driving factor behind last year's marked decline in record sales.

The file-swapping services may have a difficult time defending themselves against these complaints, especially considering that one of their major defenses was just seriously weakened. Until last week, all three services claimed that control of the P-to-P network rests in the hands of users and even if the services were shut down, the users would still be able to trade works. Unlike Napster, which had a central database, these new file swappers don't have to connect to central servers to trade files.

However, doubt was cast on that assertion when over a million Morpheus users were shut out of the service last Tuesday. The company that runs Morpheus, StreamCast Networks, first pinned the shutdown on a software glitch and then a denial of service (DoS) attack, but whichever was the case, the point had already be made: the network could be closed down.

This argument will certainly be made by the plaintiffs when the case goes to trial in the U.S. District Court for the Central District of California, Western Division in October. Meanwhile, users of the P-to-P services might concentrate on trading files, while they still can.

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