Information Technology and the Law

Grokster didn’t win, but I think the Supreme Court preserved one of the most important ideas from Sony: the technology itself is not illegal, it’s the way it’s promoted and used that’s illegal.

I thought the structure of the decision was interesting. We have a unanimous decision written by Justice Souter that completely ignores the Sony test. Then, there are two concurring (but totally opposite) opinions by Justice Ginsburg and Justice Breyer arguing about the correct interpretation of Sony. Fundamentally, Ginsburg and Breyer read the very text of Sony in different ways.

• Ginsburg implies, “The time-shifting and library-building(?) uses of the Betamax were found to be fair use; therefore, a significant number of [potential uses of the Betamax] were non-infringing, so Sony was not liable.” In Grokster, we have “no finding of any fair use and little beyond anecdotal evidence of non-infringing uses.” Ginsburg calls on Grokster to show that “a reasonable prospect that substantial or commercial non-infringing uses were likely to develop over time.”

  Ginsburg seems to completely eviscerate the “capable” part of the “capable of non-infringing uses” test. She seems to imply that if time-shifting and library-building were not fair use, then Sony would have been liable. After all, there is no way that Sony could have predicted the billion-dollar market success of pre-recorded home videos as a reasonable prospect of a substantial non-infringing use.

• Justice Breyer, on the other hand, reads the Sony decision as formulating the “capable of non-infringing uses” test and then applying it. Even if library-building and time-shifting were not fair use (and given that only 9% of VCR use was “authorized”), Sony would still not have been liable. Breyer likes the “capable of non-infringing uses” test because it’s forward-looking and doesn’t prematurely cut off technology.

These are totally different readings of Sony. I don’t think there’s any way to reconcile them. We could have guessed at Ginsburg’s reading when she made this objection in oral argument:

There is a statement — one could take it as clear — “capable of substantial noninfringing use.” That would be very clear, I agree. But Sony goes on for 13 more pages. If the standard were all that clear, it would have stopped there. … Or if you then read back, as a careful reader would, then you find the statement that the primary use of the Sony machine for most owners was time-shifting, a use that the Court found either authorized or fair, and, hence, noninfringing.

Well, that’s the last word. How will our world change now?

Majority opinion by Justice Souter; concurring opinion by Ginsberg (joined by Rehnquist and Kennedy); concurring opinion by Breyer (joined by Stevens and O’Conner).

Link.

The Supreme Court ruled today, by a 9-0 margin, that Grokster’s actions were illegal. I’ll post a link to the Court’s opinion here once it’s available.

The Supreme Court has said that it will announce decisions in all remaining cases, including Grokster, on Monday June 27.

Class members, feel free to post here about the decision if you get the urge.

For news about the case, and pointers to online discussions, check out my blog.

Don Snyder’s post predicting the outcome of the Grokster case was quoted in the New York Times today.