| In the mid-1980s, the motion picture
industry feared that a then brand new technology - the VHS
recorder - would be the death of the movie business because it
enabled individuals to copy movies for their personal use
without the studios' advance permission. They claimed that
such unauthorized copying violated their copyrights. The case
was fought all the way to the Supreme Court which, fortunately
for both consumers and for the movie business, ruled that even
though some people could use a VCR to infringe studios'
copyrights, the devices also had "substantial non-infringing
uses." Accordingly, said the Court, the VCR would not and
should not be banned. [Supreme Court’s landmark opinion in Sony
Corp.v. Universal Studios.]
Today, just over 20 years since the watershed decision in
Sony, powerful multi-national entertainment companies are
again appealing to the Supreme Court to reverse an
innovation-friendly ruling by a federal appellate court. In
MGM v. Grokster, they argue
principally that the relatively tiny corporate developers
of Grokster and Morpheus peer-to-peer software should be held
liable for copyright infringement because - just as they
argued in the Sony case - people unconnected with and outside
the control of the peer to peer developers are allegedly using
P2P technology to infringe the industries' copyrights.
For their part, the P2P United members who develop and
market Grokster and Morpheus software argue
strenuously in their primary brief that the two prior
federal court rulings in their favor should not be overturned
by the Supreme Court. In those cases, the makers of Grokster
and Morpheus successfully defended themselves in federal
District Court in California and before the U.S.
Court of Appeals for the Ninth Circuit. Both courts
delivered strongly reasoned rulings grounded squarely on the
core holding in Sony that the developer of a
"neutral" technology which is "capable" of "substantial
non-infringing uses" should not be held "secondarily" liable
for what a third party outside of the developer's control may
use that device or technology to do.
Perhaps in part because the U.S. Court of Appeals for the
Seventh
Circuit ruled against a P2P developer in a case involving
different technology (and without taking the California
courts' decisions into account), the Supreme Court, announced
on December 10, 2004 that it would hear this case and
scheduled oral arguments for March 29, 2005. Adding to the
already voluminous
record, more than 50 amicus, or "friend of the
Court," briefs were submitted to the Supreme Court on behalf
of the parties on both sides, as were several "neutral"
filings.
While few, if any, unexpected parties filed on behalf of
entertainment industry interests in this case, supporters of
Grokster's and Morpheus' position that the pro-innovation
"Sony Doctrine" so critical to our culture and economy must be
upheld included an astonishing diversity of respected public
and private sector amici:
- National
Association of Shareholder and Consumer Attorneys
(NASCAT)
- National
Venture Capital Association
- Intel
Corporation
- Consumer
Electronics Association, the Computer and Communications
Industry Association, and the Home Recording Rights
Coalition
- Cellular
Telecommunications & Internet Association, US Telecom
Association, US Internet Industry Association, AT&T,
BellSouth, MCI, SAVVIS, SBC, Sun Microsystems, and
Verizon
- 60
Technology Law Professors and USACM
- Consumer
Federation of America, Consumers Union, Free Press, and
Public Knowledge
- American
Conservative Union and National Taxpayers Union
- American
Civil Liberties Union, National Library Associations,
Internet Archive and Project Gutenberg
- Eagle
Forum and Educational Defense Fund
The Supreme
Court's ruling in this historic case is expected in June or
July of 2005. |
