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He May Shy From Tanks but Not the Massed Media Forces

One lawyer helped a file-sharing network beat the entertainment industry. Now he seeks new battles.

May 18, 2003|Jon Healey | Times Staff Writer

SAN FRANCISCO — One day in the early 1970s, as the Vietnam War dragged on and the antiwar movement gathered steam, students at the University of Pennsylvania seized the campus quadrangle and barricaded themselves behind its iron gates.

Mayor Frank L. Rizzo sent in the Philadelphia police. Just so there would be no misunderstanding, the cops rolled up in a Sherman tank with a 75-millimeter cannon.

"Everyone sort of assumed it wasn't loaded, but no one wanted to find out," Michael H. Page, a former Penn philosophy major who was among the demonstrators that day, recalled recently. "We declared victory and left."

Page now is a lawyer at Keker & Van Ness in San Francisco, surrounded by high-tech clients instead of antiwar activists. But when he signed on to defend Grokster, the five-person company behind a controversial online file-sharing network, he ran into the courtroom equivalent of a Sherman tank: the massed force of the major record companies, music publishers and Hollywood studios.

And this time, he really did win.

Grokster and other file-sharing systems let users find and copy music, movies and software from one another's computers. They're like giant neighborhood garage sales, but everything is free and supplies are unlimited.

The music industry blames widespread file sharing for slumping CD sales, and the movie industry fears it will have the same problems as soon as consumers have faster connections to the Internet. The industries have sued the most popular file-sharing companies, winning pretrial rulings that shut down the popular Napster Inc. and Aimster networks.

Late last month, however, U.S. District Judge Stephen V. Wilson in Los Angeles ruled that Grokster and Streamcast Networks Inc., which distributes Morpheus file-sharing software, didn't violate the studios' or labels' copyrights. Although Wilson found that songs and movies were being copied illegally on those networks, he said the two companies weren't liable because they didn't monitor or control users' behavior.

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Industry Strategy

The ruling, which the entertainment companies plan to appeal, blew a gaping hole in the industry's anti-piracy strategy and legitimized a legion of file-sharing upstarts. By helping firms such as Grokster grow stronger, the decision also may increase the pressure on entertainment companies to work with file-sharing networks.

Page doesn't claim full credit for the victory. Two prominent West Coast law firms and the Electronic Frontier Foundation, a public interest group, did the legal heavy lifting early on before circumstances pushed Page into a more prominent role.

"I've likened it to drafting a bicycle behind two semis," Page said. "All of a sudden, one of them rolls and the other turns left."

Page helped frame the case as a battle not over piracy, but over technology. For Page and his allies, it became a fight to preserve a key principle of the law: that products with legitimate uses shouldn't be outlawed just because they can aid lawbreakers.

That principle was established in a landmark 1984 Supreme Court decision that held that the Sony Betamax videocassette recorder didn't violate the Hollywood studios' copyrights: A technology with substantial, legitimate uses couldn't be banned because of the way some people chose to use it.

The parallels between that case and Grokster were so strong, Page said, he was sure he would win.

"The thought that we might possibly lose did cross our mind," Page said with his characteristic deadpan humor during an interview at his cramped office in a converted warehouse on the northeastern end of San Francisco's financial district. "We didn't think it was likely."

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New Challenges

Now Page and his colleagues at Keker are in other battles against the entertainment industry.The firm is defending 321 Studios Inc. of Chesterfield, Mo., accused by the Hollywood studios of fueling piracy by selling a computer program that copies DVD movies. Page is defending Hummer Winblad Venture Partners of San Francisco, which two major record companies have sued for investing in the Napster music-sharing network.

He's also handling a patent infringement lawsuit against Microsoft Corp. by InterTrust Technologies, a Santa Clara, Calif., company jointly owned by Sony Corp. and Philips Electronics. At issue is whether InterTrust's patents were violated by Microsoft's popular software for protecting digital music and video files against piracy.

Those cases could have a profound effect on the entertainment industry's shift from physical products -- packaged discs and tapes -- to virtual ones delivered electronically such as on-demand movies and online jukebox services.

What the cases will help determine is key to the industry's future: how much control copyright holders can exert over new digital technologies.

The most immediate effect of the Grokster case is on the music industry, which has seen sales plummet as file-sharing services have proliferated. Oddly enough, the music industry is where Page got his start.

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