U.S. Supreme Court to Rule on File Swapping

On Tuesday, the U.S. Supreme Court is going to hear a case that could redefine the nature of copyright law in the era of TiVo and iPod.

U.S. court ruling may be ‘game changer’ for file swapping (NYT-IHT, 28 March)

On Tuesday, the Supreme Court will hear a case in which the recording and film industries seek to hold makers of file-sharing software liable for the illegal copying and distribution of copyrighted material online. The case is against other file-sharing services, Grokster and Morpheus, which won in lower courts. But Gorton said if those rulings are overturned it could make LimeWire vulnerable. “If the Supreme Court says it is illegal to produce this software, LimeWire the company will cease to exist,” Gorton said. “But LimeWire the software will continue to be on the Net no matter what we do in this business.”

The court case, MGM v. Grokster, is in many ways the culmination of the music industry’s five years of escalating legal, technical and rhetorical attacks against file-sharing systems and their users. It is being eagerly followed by a wide range of media and technology companies because the high court may use this case to redefine the reach of copyright in the era of iPods and TiVo.

No matter what the ruling, music executives and file-sharing advocates alike say that fans will probably always be able to find plenty of music to download free from the Internet. Still, the case will determine whether file sharing can continue to be promoted by companies like LimeWire and Sharman Networks, which makes Kazaa. These companies operate in public and earn profit from advertising and software sales. If the lower court rulings are overturned, it could mean that the software will be written and distributed by shadowy players on the fringes of the law. “I think this court decision is a game changer,” said Andrew Lack, chairman of Sony BMG Music Entertainment. “It will dramatically affect behavior, and behavior will dramatically affect how music is sold and distributed and consumed. It will clarify the law and establish right from wrong.”

While I’m interested in seeing how this comes out, I regard the fact that it has gotten this far in the legal arena as an abrogation by Congress of their basic responsibility. The regulation of interstate commerce is the primary domestic function of the federal government. This issue has been percolating for nearly a decade. It’s long past the time for Congress to revamp the law on this issue. Instead, they’re content to sit on the sidelines and let judges without a fraction of the investigative resources of the Congress to make a rather fundamental decision as to the basic operation of the economy.

Ironically, though, the issues being decided by the Supreme Court may be becoming moot, according to a recent Pew study.

Music Swapping Moving Away from P2P (Technology News)

The entertainment industry’s aggressive legal campaign against illegal file swappers has dramatically reduced the use of peer-to-peer (P2P) networks but might also be pushing the development of alternative “privatized” approaches to sharing music and video. The Pew Internet & American Life Latest News about Pew Internet & American Life Project said a recent survey found growing use of informal fire-sharing networks, with people sharing copyrighted music — some of it bought from online sites such as iTunes — using means such as e-mail and portable players.

The findings could have broad implications for the music industry, which has touted the rise of paid sites and the drop of P2P activity as evidence that its controversial legal campaign to sue file-swappers is bearing fruit. The report says that about 36 million Americans, or 27 percent of U.S. Internet users, download music or video files from the Web and that half of them have found ways to swap their files without using legal sources or P2P networks.

Rather than relying on networks such as Kazaa Latest News about Kazaa or Morpheus Latest News about Morpheus, which formalize the file-sharing process, people are using other means to share those files, including e-mail, MP3 players, instant messaging and even blogs, the report said. “The privatization of file-sharing is taking place as the number of Americans using paid online music services is growing and the total number of downloaders is increasing,” Mary Madden, the research specialist at Pew who wrote the report, said.

Of course, as Thomas Menneche points out, it could simply be the number of people admitting to the use of file sharing networks has decreased.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Brian J. says:

    Even blogs?

    Perhaps the FTC should step in and regulate this lawless frontier of information sharing.

  2. Rich S. says:

    The economics of media are artificialy inflated by extreme copyright provisions.
    Hollywood needs to drop all this whining and adjust to the new reality.
    It is now cheap to produce and distribute music.
    Hollywood is no longer the only game in town.

  3. James Joyner says:

    Rich: But Hollywood isn’t the one producing music. And having to compete with theft isn’t really the same as ordinary competition.