Donald B. Verrilli Jr., the attorney representing the entertainment industry, claimed the P2Ps are "inflicting catastrophic, multibillion-dollar harm" on the entertainment industry. "The record industry has lost 25% of its revenues" since the advent of Napster, Verrilli told the court, describing P2P software as a "gigantic infringement machine" that steals copyrighted works.
Verrilli said the inducement rule doesn’t go far enough. The DOJ’s Paul Clement backed him up, arguing that a product warranted protection if it was used for infringement less than 50% of the time. the Supreme Court should allow lawsuits that would shut down those entities whose primary business involves copyright infringement, calling the P2Ps’ activities “a shell game.”
Justices David H. Souter and Antonin Scalia wondered whether the Xerox copier or the iPod would have seen the light of day given that they can and are used for illegal purposes, while Justice Stephen G. Breyer noted that there are "excellent uses" of P2P technology.
Richard G. Taranto, repping Grokster and StreamCast, told the court that its 1984 “Betamax” decision absolving Sony of copyright infringement based on the “substantial non-infringing uses” of the VCR, should apply for the sake of "innovation protection." As long as the noninfringing uses were not "far-fetched,"
Justice Ruth Bader Ginsburg took issue with
Clement told the justices that while the Ninth Circuit had used as its test "the mere theoretical capability of noninfringing uses" in its 2001 ruling against Napster, the Supreme Court should look at the defendants’ actual "business model," which he described as an "extreme case” built on "copyright infringement without liability, with the full knowledge that the draw is unlawful copying.” The P2Ps, Clement asserted, had "a business plan from Day 1 to capitalize on Napster."
Said Verrilli, "Our position is that we're entitled to injunctive relief against the continued operation of this gigantic machine that was built on infringement."
Based on the day-one exchanges, it’s hard to say how the Supreme Court will rule. But it’s also hard to imagine Grokster and StreamCast getting off the hook altogether.
Wrote Slate’s Emily Bazelon in a commentary, “The genius of Napster, Grokster, Aimster, and other free file-sharing services is the ease with which they turn law-abiders into law-breakers. Some of the credit (or blame) goes to the open-source movement—represented outside the Supreme Court today by a group waving ‘Don't Stop Innovation’ signs. But file sharing also owes its success to those of us who have just stopped noticing copyright warnings. According to one congressional study, most people think that copying for money is wrong, but that copying for friends is OK. In other words, who really stops to think before photocopying a magazine article or burning a copy of a CD? Swapping files with thousands of other people over a server, it turns out, doesn't feel that different. It doesn't feel like stealing.”
MUSIC REVENUE TOPPED $17B IN 2023: RIAA
Streaming subscriptions lead the charge. (3/27a)
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THE NEW UMG
Gosh, we hope there are more press releases.
TIKTOK BANNED!
Unless the Senate manages to make this whole thing go away, that is.
THE NEW HUGE COUNTRY ACT
No, not that one.
TRUMP'S CAMPAIGN PLAYLIST
Now 100% unlicensed!
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