Entertainment Industry Asks Justices to Rule on File Sharing

In the latest volley of the file-sharing wars, the movie and music industries have filed a petition asking the Supreme Court to overturn a federal appeals court decision that favored Grokster and StreamCast Networks, the makers of software that allow users to trade copyrighted files.

That decision, issued in August by the United States Court of Appeals for the Ninth Circuit in San Francisco, upheld the notion that makers of a technology with legal uses cannot be held liable simply because some - or even most - of its users deploy it to violate a copyright.

The court relied heavily on the principles of a 1984 Supreme Court decision known as the Sony-Betamax case, which gave makers of electronic devices crucial legal protection against claims of copyright infringement.

The new petition, filed Friday by the recording and film industries, argues that the appellate court misapplied the Sony-Betamax decision.

"The Ninth Circuit's decision threatens the very foundations of our copyright system in the digital era," the petition claims, arguing that software companies like StreamCast and Grokster "brazenly encourage and profit from infringement" of copyright.

File-sharing, or peer-to-peer, software allows computer users with the same networking program to connect and have direct access to files from one another's hard drives. The vast majority of activity on such networks involves the exchange of illegally copied materials - most of it music files.

The petition also argues that the decision in the Ninth Circuit conflicts with an earlier decision by the appeals court in the Seventh Circuit on peer-to-peer technology. That case, decided in 2003, upheld an injunction against Aimster, another file-sharing service, on the grounds that it facilitated copyright infringement.

A clear conflict between two circuit court decisions could increase the likelihood that the Supreme Court would visit the entertainment industries' appeal - although critics of the lawsuit say even the Aimster decision upheld the basic tenets of the Sony-Betamax case.

"They want to argue that there's some sort of national emergency here," said Susan Crawford, a professor of Internet law at the Cardozo School of Law in New York. "But Betamax is the law of the land and it's not undermined by either of these two opinions."

The petition to the Supreme Court comes as a bill called the Inducing Infringement of Copyrights Act of 2004, which would amend federal copyright law to hold makers of a technology liable for the illegal behavior of its users, stalls in the Senate.

It is unclear whether the Supreme Court will consider the current petition. Fred von Lohmann, the senior staff lawyer with the Electronic Frontier Foundation who successfully argued the case before the Ninth Circuit court on behalf of StreamCast Networks, said the movie and music industries were unlikely to get relief from the courts.

"They seem to think what they can't get from the Senate, they can get from the courts," Mr. von Lohmann said. He said that judges can only apply the law, not make it, and so far, "every court has said copyright is a creature of statute."