The case is due to be heard on 29th March, an appeal by the entertainment industry against two file-sharing service providers – Streamcast Networks Inc, the company behind the Morpheus file-sharing software, and Grokster Ltd.
The Supreme Court hearing is expected to focus on the meaning of its 21-year-old decision on Sony's Betamax video recorder. In the early 1980s, the device was said to infringe the copyrights of TV and movie studios; but Sony won the case because the machine also had significant non-infringing uses.
According to the Washington Post, Acting Solicitor General Paul D Clement has asked the Court to overturn the Betamax ruling. On behalf of the US Government, which is not a party to the case, Clement argues that "the overwhelming use of respondents' networks is infringing, and it appears likely that most if not all of respondents' revenues are derived from that infringement".
In a separate brief the Information Technology Association of America, NetCoalition, Digital Media Association, and the Center for Democracy and Technology ask the Supreme Court to uphold the ruling.
Application of Sony Betamax test, says the coalition of tech groups, has promoted the explosion of technological innovation since the mid-1980's – everything from the personal computer to digital music players and the rise of the internet itself. But the test does not immunise a vendor's other conduct, say the groups. It does not allow vendors to actively encourage users to violate copyright laws.
So the tech groups want the Supreme Court to send the case back to a lower court for it to decide whether Grokster's and Streamcast's conduct amounted to the kind of bad behaviour that is recognised as contributory or vicarious copyright infringement.
The tech groups' brief also asks the Court to clarify that the Sony Betamax test does not require an examination of whether a technology could have been redesigned to reduce infringing uses; and there's no need to weigh the cost of doing so against the benefits of reduced infringement, they say.
A separate brief from the Institute of Electrical and Electronics Engineers-USA (IEEE-USA) says much the same thing: a provider of technology with lawful and unlawful uses should not be liable for the infringements of users unless the provider has actively induced the user to infringe.
The case began with Grokster and Streamcast being accused by the movie and music industries of providing the means for countless file-swappers illegally to copy and share copyrighted music, software and films over the internet. It was dismissed by the Ninth Circuit Court of Appeals in August 2004 on the grounds that, while the companies provide the software used by file-sharers to swap illegally copied digital files, the software can also be used for legitimate purposes.
The Court was also hesitant to extend the scope of copyright law to cope with developing new technologies, as the entertainment industry was urging.