- The Washington Times - Monday, March 28, 2005

Debi Cochran once made a living writing music in Nashville, racking up a string of hits recorded by the likes of Collin Raye and Ronnie Milsap.

These days, she supports her family selling handbags at Dillard’s, a department store about 15 miles south of the Grand Ole Opry.

Online music piracy helped drive Ms. Cochran from the profession full time, she said.

“Every time someone is clicking on one of your songs and downloading it illegally, it adds up to money I’m not getting,” she said.

Ms. Cochran and others like her will be watching closely when the Supreme Court hears arguments tomorrow in MGM v. Grokster, a case that could redefine the boundaries of using the Internet to distribute music and movies.

Metro-Goldwyn-Mayer Inc., representing the entertainment industry, wants the court to overturn a lower-court ruling that said Grokster Ltd. and StreamCast Networks Inc., the parents of two of the most popular file-sharing services, are not liable for illegal downloads using their software.

The defendants cite the high court’s 1984 decision in Sony Corp. v. Universal Studios Inc., which held that companies that sell videocassette recorders are not liable for users’ copyright infringement.

“That’s been a crucial piece of legal clarity for the tech sector,” said Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, a privacy rights group that is representing StreamCast before the Supreme Court.

In the Sony case, the Supreme Court held that VCRs were used primarily for “time shifting” — taping one program off television to watch it later.

In the Grokster case, the plaintiffs argue that the most likely use of the software is illegal: downloading music and movies that have not been licensed for distribution, which represents copyright infringement.

A record 36 million Americans have downloaded digital music, including legal and illegal methods, according to a survey conducted last week by the Pew Internet and American Life Project.

The percentage of downloaders who have tried paid services such as Apple Computer’s ITunes program rose from 24 percent in 2004 to 43 percent this year, but Pew’s report noted that people may be less likely to report using legally questionable file-swapping services because they are stigmatized.

The technology behind file swapping has advanced dramatically in recent years, allowing users to share music files faster and with more people than ever before.

“The consumer has spoken: This is the way they want to get their music,” said Gigi B. Sohn, president of Public Knowledge, an advocacy group that opposes the expansion of copyright law.

The sale of traditional forms of recorded music in the United States rose slowly in 2004 after years of decline.

Record labels shipped 814 million compact discs and other music products to retailers last year, a 2 percent rise over 2003 levels and the first annual increase in five years, the Recording Industry Association of America reported last week.

The trade group for the record labels has sued about 9,100 file-swappers since 2003, settling with about one-quarter of them. In November, the film industry began suing people who swap illegal copies of movies online, but it has not disclosed the number of lawsuits.

Mr. von Lohmann and Ms. Sohn said the entertainment industry is within its rights to sue illegal file swappers, but holding technology makers accountable for the actions of their users would stifle innovation.

Overlooked in all the squabbling have been people who depend on music and movie sales for their livelihood, said William Hart, an attorney for the National Academy of Recording Arts & Sciences, which filed a brief on behalf of the entertainment industry.

“Not everyone is a fat cat mogul or a rich rock star,” he said.

Ms. Cochran said songwriters typically receive royalty checks for their music every three months. At the height of her career, her royalty checks typically were several thousand dollars.

When music file swapping became more popular and CD sales slumped, so did Ms. Cochran’s royalty checks. She took the department store job a few years ago to make ends meet.

“The bottom line is that [file swappers] can no longer pretend they’re not stealing. It is stealing, and it’s hurting real people,” she said.

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