Corante

AUTHORS

Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Powerful Language from the MGM v. Grokster Decision | Main | Posner Blogs on Fair Use and Copyright »

August 19, 2004

The Grokster Decision - Where It's At

Email This Entry

Posted by

Ernie Miller has a comprehensive round-up on the decision, plus additional analysis of its possible impact on --you guessed it -- the push for the Induce Act.

Later: Fred von Lohmann has more @ Deep Links:


The Ninth Circuit's ruling in MGM v. Grokster today clarified four points of incredible importance to innovators of all stripes, including peer-to-peer developers:

  • The Court made clear that, for purposes of the "Betamax defense" announced by the Supreme Court in 1984, the important question is whether a technology is merely capable of a substantial noninfringing use, not the proportion of noninfringing to infringing uses. The opposite rule, urged by the entertainment industry, would kill off new technologies prematurely, as infringing uses tend to be common until the incumbent entertainment industries adjust their business models to take advantage of the new opportunities created by the new technology. (When there were no pre-recorded videocassettes, the VCR was doubtless used for more infringement than it was after there were Blockbusters on every corner.)
  • The Court also explained that, in order to trump the Betamax defense, a copyright owner must show that the technology developer had (1) knowledge of specific infringments (2) at a time when it could do something about those infringements. The entertainment industry, in contrast, had argued that it should be enough to simply deliver a pile of "infringement notices" to the technology developer after the fact. Such a rule would have imperilled all kinds of companies. (Imagine Xerox receiving a pile of infringement notices about photocopiers that it had sold the year before -- should it be liable for infringing activities at every Kinkos in America?)
  • The Court also clarified that copyright law does not require technology developers to design only the technologies that the entertainment industry would approve. The plaintiffs had argued that vicarious liability principles should be interpreted to require that all innovators design their technologies to minimize the possibility of infringing uses. Of course, short of inviting Hollywood lawyers into engineering meetings, such a rule would have left innovators subject to eternal legal harassment for "not doing enough."
  • Finally, and perhaps most important, the Court observed that, in the long run, a competive, unfettered market for innovation ends up helping copyright owners (even if it doesn't help today's entertainment industry oligopolists). In fact, today's ruling will likely be remembered as yet another example of the courts rescuing the entertainment industry from its own short-sightedness. In the words of the Court, "Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through wellestablished distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player."

Comments (4) + TrackBacks (0) | Category: Laws and Regulations


COMMENTS

1. Mike liveright on August 20, 2004 12:18 AM writes...

The decision is good for those of us who feel that the MPAA position is too restrictive, but...

1) Lets not count our chickens, The supreme court may overturn, or/and the congress may rewrite the law or ammend the constution which ever it takes.

2) I still have not seen a position that both allows us, the users more access while preserves a reasonable revenue protection for the Copyright holders/creaters and distributers.

I don't want them to control the development of new technology but I don't believe that failing to have some way of protecting copyright is a winner, both because the MEDIA companies are too strong, and thus it will not fly, and because I do think that they, and the CREATORS need to have reasonable economic return to continue to create.

Permalink to Comment

2. adamthomas on August 20, 2004 1:50 AM writes...

So is there now a East-coast/West-coast battle? Shut out Studio321 and previously granted fair-use rights in SDNY while affirming the utility of public-domain in the competitive markets of the 9th Circ.?

Step up to the mic East.

Permalink to Comment

3. Branko Collin on August 20, 2004 7:05 AM writes...

"I still have not seen a position that both allows us, the users more access while preserves a reasonable revenue protection for the Copyright holders/creators and distributors."

Unless I read the law incorrectly (IA after all NAL), US copyright should not provide for "reasonable revenue protection" for creators. Instead, it should provide an incentive for creators to create. (The only thing distributors have a right to is a swift kick in the pants.)

Of course, Congress could provide this incentive by making sure that all creators, or at least those who made a job out of it, are fed every month. Another, equally reasonable, solution would be to make sure that an elite of creators gets filthy rich on the licensing of their works; this in turn could be an incentive for other creators to create, even if it does not bring them anything, the same way people buy lottery tickets in the hope to hit the jackpot one day.

Regardless of how creators are spurred on to create, their creations should always be (at least in the US) in the service of the public. Outlawing P2P would be a disservice to the public, and should only happen if there's a real threat that creators will stop creating. (Although I expect that in the latter case, P2P won't be your biggest concern.)

The balance you suggest, between a public right and a private right, does not exist. US copyright law is, or at least should be, a balance between two public interests.

Permalink to Comment

4. Kop on August 20, 2004 10:33 AM writes...

Exactly Branko! The existence of a private right is only a means to further the public interest in having an incentive to create. The right to exclude is not God-given or naturally-ocurring. It is state-created and enforced through the people's consent for the people's benefit. "She needs to get hers," is not an interest to be balanced by the courts. The public interest in having an incentive should be balanced with the public interest in using creative works.

Permalink to Comment


EMAIL THIS ENTRY TO A FRIEND

Email this entry to:

Your email address:

Message (optional):




RELATED ENTRIES
CBS to HBO: Wait for Us!
Sometime Next Year, HBO Will Become Netflix
OpenMedia vs the TPP
CopyrightX 2015 (online course) Now Open
College Students vs Rising Textbook Prices
"Amazon is crowdsourcing their slush pile"
Rule 84 and Patent Trolls
Sports Continue to Tiptoe Away from Cable Monopolies