Unlikely alliances forged for Hollywood v. Silicon Valley

Hollywood is getting help from an unlikely coalition of social conservative groups in a Supreme Court case over whether a file-sharing service should be penalized because some consumers use the technology to pirate copyrighted movies and music.

MGM v. Grokster, which the court will hear next week, has pitted conservative groups — traditionally allies on most issues — against each other, albeit for different reasons.

The Christian Coalition, Concerned Women for America, KidsFirst, the National Center for Missing & Exploited Children and the Fraternal Order of Police, as well as the National Football League, the National Basketball Association, Major League Baseball and 39 state attorneys general, have sided with the entertainment industry.

The conservative groups, aided by Viet Dinh, a former official in John Ashcroft’s Justice Department, have argued that Grokster, a peer-to-peer Internet service that allows users to download and swap movies, music and other copyrighted content, facilitates the distribution of child pornography and obscenity.

“It’s an anarchic and willfully blind system,” Dinh said.

But some other conservative groups, such as Eagle Forum, the American Conservative Union (ACU) and the National Taxpayers Union (NTU), have sided with major technology companies.

Eagle Forum argued in a friend-of-the-court brief that “unauthorized use of a technology — be it a printing press, an automobile, a firearm, or the Internet — has never justified interference with lawful uses.”

The ACU and NTU, in a joint brief, argued that a ruling against Grokster threatens free markets and innovation.

The Consumer Electronics Association (CEA), telecom-industry groups, Intel Corp., the American Civil Liberties Union and the Consumer Federation of America (CFA) also have filed friend-of-the-court briefs on behalf of Grokster.

MGM has hired Kenneth Starr, of Kirkland & Ellis, and David Kendall, of Williams & Connolly. Starr led the investigation into Whitewater, and Kendall represented President Bill Clinton and Hillary Rodham Clinton.

In addition, several public-interest groups are representing Apple, Microsoft, Yahoo, Google and Time Warner, the parent company of America Online. The groups, however, are not taking sides but disagreeing with both the lower court ruling and MGM’s position. Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) also took a similar position.

The legal issue at stake is known as the Sony-Betamax standard, which the Supreme Court established 20 years ago in a 5-4 decision. Justice John Paul Stevens wrote that even if some people misused videocassette recorders, such as Sony’s Betamax brand, threatening the movie industry, the recording technology serves a legitimate purpose.

The entertainment industry views file-sharing technology much the same way it viewed VCRs in the 1980s.

MGM’s lawyers argued in their brief that Grokster has twisted the Sony-Betamax standard by claiming that because a small number of customers might legally use the file-sharing technology, while many others use it illegally to share copyrighted material, Grokster is not violating the law.

“Grokster and StreamCast [Networks] believe they are entitled to a free pass to continue their infringement-driven businesses,” they wrote.

In 2001, MGM filed a complaint against Grokster.

There is no disagreement in the briefs that Grokster’s users illegally swap “the vast majority” of files. But in 2003, a federal district court, applying the Sony standard, ruled in Grokster’s favor, and last summer the 9th Circuit Court of Appeals upheld that ruling.

Congress also decided to get involved at the behest of the Recording Industry Association of America (RIAA). Hatch and Leahy, powerful members of the Judiciary Committee, sponsored legislation that would have held companies liable for “intentionally [inducing] copyright infringement.” But the effort to pass a bill failed.

Mitch Glazer, one of the RIAA’s top lobbyists, said that the entertainment and technology companies agreed to a simple bill that focused on punishing behavior rather than technology development. He added that too many “disinterested parties” opposed the bill when “the clock ran out” and Congress adjourned.

Another lobbyist was more critical of the effort, saying: “There was no groundwork beforehand. It was too threatening to users and manufacturers, and it was not a long-term solution.”

Now the parties to the case have banked on strange bedfellows and counterintuitive arguments in hopes of winning a favorable outcome.

But Grokster and its allies favor congressional action rather than judicial decree, arguing that only Congress can alter the Sony-Betamax standard.

“If a congressional fix is going to occur, it ought to be a narrow kind of fix,” said Cindy Cohn, an attorney for StreamCast Networks.

But the film industry’s lawyers said that argument has “no merit.” And Hatch, who opposes activist judges, and Leahy made a similar argument.

“[Copyright] protection does not lie solely in the province of Congress,” they wrote. “The courts are necessarily part of the enterprise determining when infringement has occurred.”

Several lawyers involved in the case said the losing side would most likely seek a legislative solution in Congress.