Does the multimedia-sharing logic of videocassette recorders (VCRs) apply fully to peer-to-peer (P2P) file sharing? Does the Supreme Court’s logic in Sony/Betamax apply to MGM versus Grokster? In this article, Pamela Samuelson reviews a legal brief she and 39 other law professors filed in the MGM case, in which they try to answer “yes” to both questions. While her arguments start out strongly in the first half of the article, the second half of her argument suggest that the answers to these questions should be “partially.” There is one fundamental difference between P2P sharing and the sharing of paper music, digital cassettes, and so on: only P2P allows the individual to share inexpensively with millions.
MGM is suing Grokster for knowingly contributing to copyright infringement by end users of their P2P file sharing software. Grokster and the law professors argue back that MGM has no right to do so, in light of Sony versus Universal (involving VCRs), which held that copyright owners have no legal right to control technologies that have, or are capable of, substantial noninfringing uses.
Sony was a 1984 Supreme Court decision, which, like other parts of copyright law (Altai), had to borrow from the patent system to come up with a workable solution. The court ruled that Sony’s Betamax VCR had enough noninfringing uses to exempt Sony from charges of contributory infringement.
Samuelson views this decision as simple, clear, predictable, and objective. While I agree, I do so by saying that the Supreme Court got lucky in this intellectual property decision. By 1984, the Supreme Court had finally cleaned up the mess of its 1972 Benson decision. While I agree with their Eldred decision, I view their Harper Row decision as woefully ill-defined. I give them about a 50-50 rating on major intellectual property decisions, so I do not think that the Sony case should be relied upon in the Grokster case; they should do a fresh review.
MGM proposes four reasons to overturn Sony: knowledge of infringement by Grokster, the primary use of Grokster being infringement, that Grokster intentionally designed Grokster for infringement, and that Grokster could have designed its software to make infringement harder. Samuelson does a good job of arguing why these are losing arguments, in light of Sony. Her arguments could stand without relying on Sony, since her policy reason is that supporting MGM gives too much control over new technology to content owners. The courts should therefore not be too favorable to MGM. But they should not be too favorable to Grokster either, as I argue below.
At this point, the Samuelson’s arguments start getting weaker. First, she states that if MGM wants better controls, it should go to Congress, not to the courts. This is a slightly hypocritical statement for a law professor to make, since many law professors supported Eldred/Lessig’s going to the courts to get copyright term extensions, which had been passed by Congress, reduced. She writes, I assume seriously, that when it comes to patents and copyrights, “Congress has the institutional competence to identify the affected stakeholders, gather facts about matters arguably calling for a policy response, assess the costs and benefits of various proposed solutions, and craft rules that balance competing interests.” At least for copyright, in light of the nonsense of 17 USC 102, I am not sure who has worse competence, Congress or the courts.
Second, she starts getting closer to the real issue, the nature of the underlying technology. Congress has had to deal with disruptive multimedia technologies in the past: sheet music, analog/digital cassettes, cable television, and satellites. The implication is that P2P is similar enough to these earlier technologies to imply that Congress’ current treatment of P2P makes sense. Indeed, the last section of her article mentions how Congress, in recent years, has gathered information on P2P file sharing.
And here, she briefly states the key, unresolvable, problem underlying Grokster: “Congress has learned that no simple “quick fix” is available to resolve the challenges that the Internet in general, and peer-to-peer file sharing technologies in particular, have posed.”
This key problem is of the one major difference between P2P and previous technologies; P2P allows individuals to cheaply share with millions, with little possible regulatory control. No human could afford to share millions of pages of sheet music (as in White-Smith), no human could afford to mail millions of digital cassettes or videocassettes to friends, while cable television and satellite systems are subject to practical regulatory control (given their physically fixed points of distribution). So, in all of these cases, the logic of Sony fully applies. But in the face of P2P, this logic breaks down, because it was not an issue the Supremes had to consider in 1984 (nor was there a patent world practice they could borrow).
Peer-to-peer file sharing has been around since the early 1980s, when the first P2P patents started to issue (patents ignored by the Supreme Court in the Sony case). But noninfringing uses of such technologies in the industrial world were quite limited, because there were usually better alternatives. And by the mid-1990s, there were also P2P file sharing services on the Internet for multimedia. But their acceptance was limited, because these early systems put strict controls in place to make sure only noncopyrighted materials were shared. The limited acceptance, again, was also due to better alternatives being available (such as centralized archives of download material).
It was only when Napster (and its progeny, like Grokster) came along that copyright infringement became easier (by allowing individuals to share files with millions of others, with little personal legal risk), and that P2P technology started becoming more popular.
Society can easily create alternatives. For example, why not fund the Library of Congress to build a National Library of Music, and a National Library of Videos, where people who want to make their materials freely available can deposit their works? Companies like Apple are setting up centralized online businesses to sell works that people don’t want to make free. What need then is there for uncontrolled P2P?
There will have to be some compromise. As Samuelson rightly argues, content providers like MGM should not be allowed much control over new technologies. However, as Samuelson fails to acknowledge, P2P software providers like Grokster should be made to put more controls into their software to block copyright theft (which Napster lied about not being able to do). The technology exists, or can be developed.
That is how the appeals court, and ultimately the Supreme Court, should rule. So, while I agree with Samuelson’s critique of MGM, I disagree with her lack of critique of Grokster (admittedly, the law professors could not do so in their brief, and there was only so much room in this CACM article). The Sony case is only partially applicable.
