Going Grokster

Overviews
Jonathan Band (of Morrison & Foerster) provides a helpful summary of the arguments made in the briefs, in chart form: The Grokster Scorecard
Briefs are available from the Copyright Office and EFF
At SCOTUSblog, Steven Wu offers a useful overview: MGM v. Grokster: Background and Analysis: “This case pits large copyright holders against technological upstarts. The copyright holders claim that new technology will drive them out of business; the techies claim that overly restrictive legal rules could stifle innovation. This is not a new battle: Twenty years ago, in the famous case of Sony v. Universal, 464 U.S. 417 (1984), the motion picture industry argued that Sony’s sale of home video systems (the Betamax) constituted contributory copyright infringement. The Court ruled for Sony, holding that there was no contributory copyright infringement because ‘the Betamax is capable of commercially significant noninfringing uses.'”
Legal Times’ Tony Mauro introduces the attorneys: Top Attorneys Tapped for High Court Tech Cases.
Reporting
The NY Times: A Supreme Court Showdown for File Sharing: “The case, M.G.M. v. Grokster, is in many ways the culmination of five years of escalating legal, technical and rhetorical attacks against file-sharing systems and their users by the music industry. It is being eagerly followed by a range of media and technology companies because the court may use this case to redefine the reach of copyright in the era of iPods and TiVo.”
LA Times: High Court Prepares for Case Against File Sharing: “How the court rules could shape the digital evolution of entertainment and technology, industries that have long been uneasy partners. A win for StreamCast and Grokster could force the studios and labels to work with their file-sharing nemeses or redouble their attacks on individual downloaders, more than 9,000 of whom have already been sued. A win for the entertainment companies could make entrepreneurs and investors balk at developing new entertainment and communications technologies.”
The Economist: Illegal file-sharers under attack: “The entertainment business has long been susceptible to copyright infringement—and it has usually blamed the electronics industry. The music industry first cried foul at the introduction of the cassette-tape recorder in the late 1960s. More recently, the digitisation of music has allowed ‘burning’ of music tracks on to CDs with the help of a computer. The latest threat to the record companies is a copying technique of even greater speed, ease and scope.”
News.com: Top court to hear landmark P2P case Tuesday: “From the smallest start-up to the executive offices of Intel, the technology world sees Tuesday’s Supreme Court review of file swapping as potentially one of the most critical moments in the industry’s history. At stake is nothing less than the future of innovation, executives say.”
Wired News: Supreme Showdown for P2P’s Future: “When file-sharing service Grokster and entertainment giant MGM Studios face off Tuesday in front of the Supreme Court, the lawyers will argue copyright law. But the court’s decision will affect how people use entertainment and share information.”
The Hollywood Reporter: Justices set to hear MGM v. Grokster: “It’s unlikely that any case has engendered more hand-wringing during this session of the court than MGM Studios v. Grokster, which has attracted more briefs filed on both sides than any other case before the high court this term. People are expected to camp out during a cold, drizzly spring to get the few public seats, and protesters have been preparing their placards.”
Intellectual Property Watch: U.S. File-Sharing Case Could Have International Impact: “While both sides agree the outcome will have an international impact, they disagree on whether it violates any international agreements to which the United States is a party, and whether the legal principle of secondary liability comes into play in this case.”
Opinion
Mark Cuban: Let the truth be told…MGM vs Grokster: “It won’t be a good day when high school entrepreneurs have to get a fairness opinion from a technology oriented law firm to confirm that big music or movie studios wont sue you because they can come up with an angle that makes a judge believe the technology might impact the music business. It will be a sad day when American corporations start to hold their US digital innovations and inventions overseas to protect them from the RIAA, moving important jobs overseas with them. That’s what is ahead of us if Grokster loses.”
News.com reports: Mark Cuban to finance Grokster defense
NY Times: Editorial: When David Steals Goliath’s Music: “The battle over online music piracy is usually presented as David versus Goliath: the poor student in his dorm hunted down by a music conglomerate. It is easy, in that matchup, to side with the student. But when the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating. If their work is suddenly made “free,” all of society is likely to suffer.”
Enrest Miller takes the NYT editorial board to task: New York Times Editorial Board Blows It on Grokster: “They manage to all but regurgitate Hollywood’s talking points on the issue.”
Doron Ben-Atar in the Chronicle of Higher Education: Hollywood Profits v. Technological Progress: “There is no denying that commercial use of copyrighted material is both illegal and immoral. Yet estimates of the cost of piracy are misleading. They don’t account for the fact that piracy fuels demand for entertainment products: 2004 was a banner year for pirates; it was even better for the movie industry, where rentals and sales of DVD and VHS movies accounted for nearly $26-billion. When Hollywood cries poverty, as the victim of pilfering teenagers and workers who live on a couple of dollars a day, it is laughable.”
David Rowan writes in The Times (UK): Downloaders of the world unite: “But the roughly 10 per cent of ‘legal’ file-swapping on these networks allows programmers to swap code, academics to exchange learned papers and little-known musicians to gain a fan base. Why should the music industry be able to close such communications channels? Just because technology comes along and disrupts existing business models, should copyright owners not find clever ways to adapt, rather than suing 12-year-olds and fighting software developers in court?”
Related Items
Music and Video Downloading Moves Beyond P2P: “49% of all Americans and 53% of internet users believe that the firms that own and operate file-sharing networks should be deemed responsible for the pirating of music and movie files. Some 18% of all Americans think individual file traders should be held responsible and 12% say both companies and individuals should shoulder responsibility.”
Randal Picker, Rewinding Sony: The Evolving Product, Phoning Home and the Duty of Ongoing Design: “It has been clear for sometime that the Supreme Court would revisit its 1984 decision in Sony creating the famous (infamous?) “substantial noninfringing use” test for secondary liability for copyright infringement. The only question was how the challenge would emerge. Would it be a re-make of Sony with the digital video recorder playing the role of the VCR? Or would some other device force its way on the stage? Of course, we now know that peer-to-peer software has done just that and that the lower court decisions in Napster, Aimster and finally Grokster have put these key issues before the Court again.”
See also: IPtelligentsia podcast: Grokster and coverage at the Induce blog.
More links are available from FurdLog: Monday’s Grokster Roundup