Supreme-Court Transcript Shows Legal Reasoning In Grokster CaseSupreme-Court Transcript Shows Legal Reasoning In Grokster Case

The U.S. Supreme Court Wednesday released the transcript of last month's oral arguments in the contentious Grokster file-sharing copyright-infringement case.

The 55-page document filled in details on arguments by Metro-Goldwyn-Mayer Studios, which is seeking to overturn a California court decision allowing Grokster to continue offering its peer-to-peer software. That decision relied on the precedent famously set in the 1984 Betamax case, which essentially held that technologies with legal applications couldn't be shut down due to illegal actions by some users.

"The things that seem very clear are that the Justices really do understand this problem now," said Eben Moglen, a professor of law at Columbia Law School and general counsel to the Free Software Foundation, which is supporting Grokster. "There's no question at all that this isn't beyond their technical understanding and that they're culturally aware of what file sharing is about."

"Like most Supreme Court arguments I've heard, you couldn't tell the way the court will line up in the case from what was said in the oral argument in any way at all," Moglen said. "Both sides got a pretty tough going over."

In his oral argument, Donald Verrilli, the attorney who spoke on behalf of MGM, sought to drive a wedge between Betamax and Grokster. "Copyright infringement is the only commercially significant use of the Grokster and StreamCast services, and that is no accident," Verrilli said, according to the transcript. "The evidence in this caseshowed that 90 percent of the material on the services was either definitely or very likely to be infringing."

Justice Ruth Bader Ginsburg interjected that there could be legitimate uses; Verrilli replied that he didn't think that was true.

Throughout his presentation, Verrilli hammered away at Grokster's legitimacy. Peppered by the judges with questions about contrasts with Xerox machines, CDs and videotape, Verrilli pointed to Apple's iPod as his model of a technology with acceptable copy protection. "From the moment that device was introduced, it was obvious that there were very significant lawful commercial uses for it," he said

Halfway through in the session, Grokster attorney Richard Taranto began his presentation. To buttress his contention that the Supreme Court shouldn't overturn the lower court's decision in favor of Grokster, he took a Betamax-like tack, stressed that peer-to-peer services have at least some legitimate uses. "This case was decided on the assumption that the respondents [i.e., Grokster] knew that there would be widespread infringing use of a product that they were putting outwhich they had no ability to separate from non-infringing use," he said, according to the transcript.

Taranto painted Grokster as a tool of autonomous communication. "The great virtue of peer-to-peer decentralized software is that it doesn't require anybody to put stuff onto a server and then bear the cost of bandwidth, of being charged by the Internet service provider when a million people suddenly want it," he said, according to the transcript.

A decision is the case could come down as early as June. "The guessing game of all time is how the Supreme Court is going to rule," said Jay Rosenthal, the attorney for the Recording Artists Coalition, in an interview. The group supports MGM in the case. "Personally, I think they're going to send it back down [to the U.S. District Court in California] for a new hearing where they hear evidence as to whether there was intent to commit copyright infringement [and] whether there's legitimate fair use."

"Everybody acknowledges here that the underlying use by the user is infringement," Rosenthal added. "So I think they're going to look at the analysis [of fair use] and whether this falls into Sony, was really not made because they didn't have enough evidence to base it on."

Moglen believes the issues raised by the case should be settled in an entirely different venue. "It's very hard to argue that this is a decision for the courts and not for Congress," he said. "All by itself, the Supreme Court is supposed to set rules to determine how big technology industries and much smaller entertainment industries are going to exist for decades? The hardest thing for the movie industry to argue is why Congress doesn't have to do anything here."