Samuelson on Grokster

Pamela Samuelson, Berkeley's intellectual property guru, has given her views on the MGM v Grokster decision. In some ways the decision could be seen as a loss for the entertainment industries:

"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. The copyright industry’s legal toolkit to challenge developers of p2p file-sharing technologies is only marginally greater now than before the Supreme Court decided the case...

Moreover, had Grokster won before the Supreme Court, MGM and copyright industry groups would have gone immediately to Congress to insist on technology-hostile legislation akin to last year's INDUCE Act (see my Legally Speaking column of March 2005). There would have been a big fight between the technology industry and the entertainment industry over what the legislation should look like, but legislation would almost certainly have ensued. Frankly any law that would have come out of that sausage factory would have been a lot less technology-friendly than the Grokster decision the Supreme Court issued. Thus, the narrow vicotry MGM won before the Supreme Court has deprived it - for now - of its strongest argument for legislation to put p2p and other disruptive technology developers out of business. Insofar as MGM's goal in the Grokster case was to persuade the courts or the Congress to give it much stronger legal protection, it has not succeeded."