Pamela Samuelson: Legally Speaking: Did MGM Really Win the Grokster Case?
MGM didn’t really want to win Grokster on an active inducement theory. It has been so wary of this theory that it didn’t actively pursue the theory in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought that the Supreme Court would be so shocked by the exceptionally large volume of unauthorized up- and downloading of copyrighted sound recordings and movies with the aid of p2p technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging disruptive technologies, such as p2p software. Viewed in this light, MGM actually lost the case for which it was fighting.
Richard Posner: Grokster, File Sharing, and Contributory Infringement: “There is a possible middle way that should be considered, and that is to provide a safe harbor to potential contributory infringers who take all reasonable (cost-justified) measures to prevent the use of their product or service by infringers.”
Gary Becker: Grokster and the Scope of Judicial Power: “Do we really want the courts determining when the fraction of the total value due to legal sales is high enough to exonerate manufacturers from contributory infringement? Neither the wisest courts nor wisest economists have enough knowledge to make that decision in a way that is likely to produce more benefits than harm. Does the fraction of legitimate value have to be higher than 50 per cent, 75 per cent, 10 per cent, or some other number?”
Anupam Chander and Madhavi Sunder, FindLaw: Apple Rips While Grokster Burns: How MGM v. Grokster Benefits Information Technology Companies: “Given this evidence of inducement, the Court ruled that Grokster could not avail itself of the Sony safe harbor for products with substantial non-infringing uses. That exception to liability, it said, only applied in the absence of evidence of inducement.”
Business Week interviews Larry Lessig: “Ten Years of Chilled Innovation”: “This is a pretty significant defeat here. Certainly the result is better than what the MGM companies wanted — because they wanted the Sony case modified — and [Justice David Souter, who wrote the decision, isn’t] modifying Sony. But still, this intent standard…will invite all sorts of strategic behavior that will dramatically increase the cost of innovating around these technologies.”
Jon Pareles, The New York Times: The Court Has Ruled So Enter the Geeks: “But the court did not give the movie and recording businesses much ammunition to attack the Robin Hoods of the Internet: those software geeks and culture fans who really just want to share. They are online right now building Web sites that don’t make a dime and spending hours writing and editing ‘mp3 blogs’ – Web page collections of downloadable songs. They hook people up, basically because they can and because people want access to art.”
Tom Zeller, The New York Times: The Imps of File Sharing May Lose in Court, but They Are Winning in the Marketplace: “Even the most ardent supporters of Big Entertainment concede that, in the long run, copyright holders are no match for the ability of file-sharing technology to adapt, mutate, evolve and expand. In fairness to Ms. Rosen, it is a stark reality she noted early on.”
Legal Fiction: The Court’s Big Day: “It’s easy to conceptualize Grokster as a David vs. Goliath, or as the little guy vs. the man. But it’s much more than that. The record companies have no love for Grokster, but what they really wanted was a test that would have allowed them to drag Microsoft (and other “software” entities) or Dell (and other “hardware” entities) into court. Stopping Grokster certainly doesn’t hurt, but the record industry could never obtain real damages from Grokster for lost royalties. But man oh man, Microsoft is a completely different story.”
Mike Godwin, Reason Online: Don’t Stop Grokkin’: “If you had a chance to listen to the content companies’ press conference on the afternoon the Supreme Court’s decision in MGM v. Grokster was announced, you heard nothing but crows of victory. The word “unanimous” was repeated umpteen times (the decision was 9-0 against the peer-to-peer company defendants), and much was said about how unequivocal the record companies’ and movie companies’ victory was.”
