Awaiting MGM vs. Grokster

Professors Terry Fisher and Jonathan Zittrain and Berkman Center Executive Director John Palfrey submitted an amici curiae brief to the Supreme Court on March 1st in the closely watched MGM v. Grokster case. The amicus brief urged the Court, which will announce a decision momentarily, not to modify the standard it created 20 years ago in its landmark Sony-Betamax decision, which exempted from liability the distributors of technologies – in that case the VCR -- that are “capable of substantial noninfringing uses” even if they also often are used for infringing purposes. The amici brief argues that the Sony standard has proven to be an effective means of balancing the interests of copyright owners with the need to preserve incentives for technological innovation. If a narrower version of the Sony standard had been in effect the last 20 years, many important technologies, including personal video recorders, CD burners and Apple’s iPod, might well have faced legal liability, and changing the standard now would seriously chill future technological innovation.

If you are a member of the press and would like to speak with the authors of the amici curiae brief, please call Amanda Michel (617 495 5236) or contact her via email (amichel@cyber.harvard.edu).  For more information, keep reading....

The brief also explains how the recent emergence of new business models for digital distribution, such as Apple’s iTunes and similar services, may eliminate any need to change the Sony standard to protect the motion picture and recording industries against any threat posed by peer-to-peer file sharing. And the brief points out that, even if new business models don’t evolve sufficiently to protect the content industries, there are more effective and sensible ways to do so than changing the Sony standard, including the proposal in Professor Fisher’s 2004 book Promises to Keep for a compulsory licensing and alternative compensation system and a proposal for a streamlined system for resolving claims by content owners against users of peer-to-peer systems. Any of these modifications of copyright law -- which, like previous adjustments of the law to major technological shifts are best left to Congress -- would help copyright owners more and hurt society less than changing the Sony standard.