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GLOBE EDITORIAL

Copyright breach

A FEDERAL appeals court in California has given the green light to massive copyright violations facilitated by Grokster and other file-sharing services. The movie and recording industries, which brought the suit, ought to appeal the decision to the US Supreme Court before pressing their case for relief from Congress.

"The Supreme Court has admonished us to leave such matters to Congress," the judges of the Ninth Circuit declared in affirming a lower court's decision. They referred to the 1984 Betamax case, in which the high court ruled that use of videotape recorders to time-shift TV shows did not violate copyright law in the absence of a congressional prohibition.

Time-shifting, in which a TV program is taped for personal viewing later, is a far cry from the rampant copying of music files done through Grokster and other file-sharing services. The appellate judges did not dispute the plaintiffs' contention that at least 90 percent of the material passing through Grokster software is illegally copied.

The judges contend that the remaining 10 percent constitutes substantial legal use as defined in the Betamax decision. That is a stretch. VCRs are most commonly used either to time-shift TV programs or to play movies that are legally copied and provide billions of dollars in revenues to the movie industry. Grokster and other file-sharing services pay royalties to no one.

The appeals judges were careful to differentiate the Grokster software from that used by Napster, first of the major file sharers, which was shut down after the same appeals court decided that it had violated copyright laws. Napster was vulnerable, the judges said, because it depended on its own computers as a clearinghouse for file sharing. Grokster relies on newer technology in which users' computers communicate directly.

Grokster is carefully tailored, like Napster, to enable users to find the songs and performers they want, and there are no mechanisms in the software to inhibit copyright violation. Grokster generates advertising income based on its ability to attract users who routinely share copyrighted material without permission. The court should have considered the obvious intention of the software as well as its architecture.

"We live in a quicksilver technological environment with courts ill suited to fix the flow of Internet innovation," declared the judges. True enough, but this case involves a technology with an exceptional record of copyright violation. It would be unfortunate if the movie and music industries now redoubled their efforts to persuade Congress to pass a wide-ranging bill that could throttle innovation.

The Supreme Court must square this case with its Betamax ruling. Given the openness of the Internet, tension between copyright and technology is inevitable, but the Grokster decision has badly tilted the balance. 

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