Supremes Ponder Peer-to-Peer

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Both sides in the Supreme Court case over Grokster and similar file-sharing networks predicted that the legal battle will end in a draw, more or less.

The predictions came after oral argument in Hollywood's appeal to shut down the peer-to-peer Internet systems that traffic primarily in copies of movies, music and TV shows.

In their comments to lawyers arguing the case, the justices indicated they were troubled by the prospect of shutting down a new technology with legitimate uses such as trading of content in the public domain and of legal video game samples that creators offer to entice sales of complete versions.

However the justices also sounded reluctant to give a free pass to networks that, whatever the potential for legitimate use, today are used overwhelmingly to illegally distribute copyrighted content.

Justice Antonin Scalia suggested that legitimate new technologies could be shut down in infancy if their most popular uses initially are for illegal purposes and the damaged parties go to court.

"What I worry about is the lawsuit coming right out of the box," Scalia said. Several justices suggested that allowing copy-protection safeguards to overreach could have killed off other digital media products such as Apple's I-pod for music files, for which significant pay services have been created.

"Neither side will have its prayers fully answered," said James DeLong, senior fellow of the Progress & Freedom Foundation, which supports keeping P2P networks free of liability unless they actively promote illegal copying.

One possibility is that the Justices will order the lower court to determine whether Grokster and its siblings actively induced users to use its system to swap content files illegally and to determine whether operators of the systems should pay damages.

The federal-appeals court in San Francisco ruled in August that Grokster itself was doing nothing wrong because its file-sharing system has legitimate, non-infringing, uses and it was not storing illegal files on its own servers. Instead, the system allows swappers to trade files stored on

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