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P2P companies ask high court for help

Tech companies, artists, venture capitalists say new products would be endangered by Hollywood proposals.

Backed by powerful technology groups and a handful of artists, file-swapping software companies on Tuesday asked the U.S. Supreme Court to reject proposals from the entertainment industry that could put them out of business.

Record labels and Hollywood studios, seeking to overturn lower court rulings shielding file-swapping companies, have asked the court to rule that businesses distributing products "predominately" devoted to copyright infringement should be held legally responsible for that illegal activity.

That prospect has drawn staunch opposition across the technology sector. Intel, trade associations representing consumer electronics and software companies, and consumer groups joined the file-swapping companies on Tuesday, asking the court to avoid creating a new legal test they said might stifle technological innovation.

"The ability to create and innovate is a dynamic process and...not every society has achieved the mechanisms and balance and capability to achieve what we've done," said Ed Black, president of the Computer & Communications Industry Association. "It is that delicate balance that content owners are threatening to throw off."

The Supreme Court case is one of the most closely watched issues across the technology and entertainment realms this year, with both sides saying that an unfavorable outcome could be devastating to their respective industries.

At the heart of the case is the 20-year-old Supreme Court ruling that made Sony's Betamax videocassette recorder legal to distribute without liability, despite its use by consumers to record and save copyright movies and TV shows. In that ruling, the court said that companies were allowed to distribute products that had "substantial commercial noninfringing uses."

That ruling has helped protect the introduction of many different products, from computers that can burn CDs to MP3 players like Apple Computer's iPod.

Record labels and Hollywood studios have said they are not trying to overturn that ruling and have no interest in making the iPod or other legitimate consumer products illegal.

However, they say that unlike Sony or Apple, Grokster and Morpheus parent StreamCast Networks have actively built their file-swapping software businesses by encouraging copyright infringement. In their appeal to the Supreme Court in January, the entertainment companies said that companies that have business models predominately supported by infringement should be held liable for their users' actions.

"The thing that distinguishes the Grokster-type systems is that they have very little use for any purpose that is lawful," Ted Olsen, the former U.S. solicitor general who is supporting the entertainment companies, said on a conference call Tuesday in response to the file-swapping companies' filings.

In their filings, StreamCast and Grokster said that they had no control over their customers' individual file trades, and so could not be held liable, based on the Betamax decision. Any decision that affected their software would be felt across the industry, they said.

"This is no different from Microsoft or any other software vendor which distributes software which is capable of lawful use, but is also capable of unlawful use," said Fred von Lohmann, an attorney for the Electronic Frontier Foundation, which is representing StreamCast.

Both sides have gathered sometimes unlikely allies to support them in their legal bids, hoping to persuade the Supreme Court that they have widespread, mainstream support.

The record labels and movie studios were joined in January by the U.S. Solicitor General's office, 40 state attorneys general, and the Christian Coalition, as well as numerous musicians and songwriters.

Along with the technology and consumer electronics groups, file-swapping companies were joined by the American Conservative Union, the National Taxpayers Union, and a long list of legal professors and computer scientists. One brief included 20 musicians ranging from Public Enemy front man Chuck D to newcomer Jason Mraz, who said that file-swapping had actually helped--or at least had not hurt--their careers.

The Supreme Court will hear the case March 29. A decision is expected by midsummer.

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