A Brief Overview of the Grokster Decision - Page 3

While the potential chill on technology companies is a serious issue, I thought it was unrealistic to think that the Supreme Court was going to rule in favor of Grokster and Morpheus. Maybe it's because I was going in with that as a baseline assumption, but I don't think that the outcome of the Grokster decision is a doomsday scenario for P2P and similar technologies. Grokster and Morpheus are fairly extreme examples, and depending on how the Ninth Circuit Court of Appeals and other courts interpret the decision, Grokster's holding could be a lot narrower than some people are fearing.

So what happened to the Betamax standard?

Although the Court's opinion downplays substantial non-infringing uses of P2P, it doesn't throw out the Betamax standard - rather, the Court is just saying that Betamax isn't completely bulletproof, if there is overwhelming evidence that your software has an unlawful objective.

The concurrences which follow the Court's opinion show how the Justices are split over the future of the Betamax standard. Justice Breyer's concurrence, which was joined by Justices Stevens and O'Connor, stresses the significant role that the Betamax standard plays in promoting innovation, and lists several good examples of non-infringing uses of P2P, including Project Gutenburg (which puts electronic books online), and Wilco's use of P2P to promote their successful album "Yankee Hotel Foxtrot."

I hope that Breyer's concurrence (which is attached to the end of the decision) will be looked to for clarification as courts interpret the Grokster decision, rather than Ginsburg's. Ginsburg, joined by Chief Justice Rehnquist and Justice Kennedy, downplays the substantial non-infringing uses of P2P networks, and, as Breyer puts it, seems to advocate that the Court "interpret Sony more strictly." Perhaps the most astute, and most exciting, part of Breyer's concurrence is his discussion of the "flow" of new technologies towards non-infringing uses, which recognizes the fact that the initial use of a technology is often only one of its many eventual uses, which are increasingly developed by consumers themselves.

For a wide range of commentary about Grokster, go to Ernest Miller's Day After Grokster Roundup on Corante. Miller is a real expert on technology law, and was part of the Wall Street Journal’s Roundtable discussion on Grokster.

Distribution of government documents via P2P

As a footnote, a smaller aspect of the case I was interested in was whether there would be any mention of people using P2P to distribute government documents. The Grokster opinion's only reference to people downloading government documents over P2P was a somewhat sarcastic comment from Justice Souter, during a passage in which he is downplaying noninfringing uses of P2P. "Indeed, StreamCast has given Morpheus users the opportunity to download the briefs in this very case, though their popularity has not been quantified."

Article Author: Thad Anderson

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