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Three popular peer-to-peer file-swapping services will soon face a jury of their peers, following a federal judge's order that they stand trial for charges of copyright infringement lodged against them by the recording and motion picture industries.

Peer-to-Peer (P-to-P) services Morpheus, Grokster, and Kazaa are due to come under jury scrutiny beginning October 1. U.S. District Court Judge Stephen Wilson ruled Monday that the defendants' motion for a summary judgment was premature.

Attorneys for the companies that run the services filed the summary judgment motion hoping to qualify for a "Betamax defense." This defense argues that the noninfringing uses of a technology should shield it from a copyright infringement suit, given that the technology has legitimate uses.

The precedent for the Betamax defense was set in the Sony vs. Universal City Studios case. In that, the motion picture industry tried to outlaw Sony's Betamax VCRs because they could potentially be used to make illegal copies of movies. In 1984, the U.S. Supreme Court ruled, however, that although some VCR uses infringe on copyright, that does not justify a ban on the technology.

While lawyers for the P-to-P defendants expressed disappointment that the judge delayed ruling on the motion, they indicate they will press the Betamax defense during the jury trial.

Industry Threatened

The civil liberties group Electronic Frontier Foundation (EFF), which is helping represent Morpheus, points out that the software lets users trade a variety of files, including shareware programs and public domain texts, not just copyright-protected works.

For the recording and motion picture industries, however, the widespread popularity of these services represent a serious threat to business. Interest in file-sharing services has only increased since the demise of the free-for-all version of Napster. The site that encouraged swapping of digital music is scheduled to reemerge as a subscription site.

Scores of copyright-protected songs, movies and other works are being traded daily, for free. The Recording Industry Association of America (RIAA) recently blamed online piracy for last year's marked decline in record sales.

Who's in Charge?

The file-swapping services may have a difficult time defending themselves against these complaints, especially considering that one of their major defenses was just seriously weakened. Until last week, all three services claimed users control the P-to-P network. Even if the services were shut down, the users could still trade their works. Unlike Napster, which had a central database, these new file swappers don't have to connect to central servers to trade files.

However, doubt was cast on that assertion when over a million Morpheus users were shut out of the service last Tuesday. The company that runs Morpheus, StreamCast Networks, first pinned the shutdown on a software glitch and then a denial of service attack, but whichever was the case, the point had already been made: The network could be closed down.

The plaintiffs will certainly make this argument when the case goes to trial in the U.S. District Court for the Central District of California, Western Division in October. Meanwhile, users of the P-to-P services might concentrate on trading files, while they still can.

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