Academic journal article Justice System Journal

The Supreme Court at the Technology Frontier: Brand X and Grokster

Academic journal article Justice System Journal

The Supreme Court at the Technology Frontier: Brand X and Grokster

Article excerpt

Technology in the judiciary has a meaning apart from its use as a set of tools for handling the business of courts and interacting with the public. Judges and other judicial actors must also contend with the implications of technology for legal questions. Late in the 2004-05 term, the Supreme Court announced decisions in two cases that on first glance shared very little in terms of area of law, procedural history, or public salience, but provided opportunities for the Court to address the relationships between law, technology, and markets. Characteristic of Rehnquist Court jurisprudence, however, both decisions demonstrated a judicial minimalism, or perhaps narrowness, depending on your point of view, that reflects either a wise skepticism about judicial competence or a reluctance to deal with pressing issues. In Metro-Goldwyn-Mayer Studios, Inc. et al. v. Grokster, Ltd., et al., 125 S.Ct. 2764 (2005), a case concerning peer-to-peer file-sharing-network software, the justices unanimously reversed a Ninth Circuit decision holding that the distributor of a product capable of substantial lawful use cannot be held liable for infringements of copyright committed by third-party users. On the same day, the Court issued a 6-3 decision in National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 125 S.Ct. 2688 (2005), reversing another Ninth Circuit decision, which had rejected a ruling of the Federal Communications Commission (FCC) that broadband-cable-modem high-speed Internet service is an "information service" rather than a "telecommunications service."

Interest in the Grokster case blossomed among the public and in the legal community as soon as the Court granted review in December 2004. This interest culminated in nineteen amicus briefs on the merits filed in support of the petitioners, twenty-seven in support of the respondents, and nine in support of neither. In contrast, no amicus briefs were filed on the merits in the Brand X cases. In Grokster, the Court was entering the highly public conflict between copyright-holding entities, especially motion-picture studios, recording labels, and music publishers, and the burgeoning technology and culture of peer-to-peer file-sharing networks. Copyright holders have represented file sharing as a substantial and larcenous drain on revenue through the illegal distribution of proprietary material in the form of digital files through the Internet, facilitated by software developers/distributors such as Grokster and corespondent StreamCast Networks, Inc. Meanwhile, Grokster and its supporters cautioned that judicial extension of liability for copyright infringement to software distributors who have no direct involvement in the activities of network participants could chill technological innovation.

File sharing on the Internet emerged as a major public and corporate issue with the popularity of Napster, an online service that facilitated the transmission of music in digital MP3 format among personal computers through central servers. Napster's servers maintained indices of the filenames available for download on all of its users' machines, which users could search for files of interest. A & M Records, Inc. v. Napster, Inc. 239 F.3d 1004 (9th Cir. 2001). Charged with contributory and vicarious copyright infringement and facing an injunction to stop the transmission of copyrighted materials, Napster shut down its free service. A & M Records, Inc. v. Napster, Inc. 284 F.3d 1091 (9th Cir. 2002). In contrast to Napster, Grokster and StreamCast software operate through true peer-to-peer networks (FastTrack and Gnutella, respectively) that allow direct sharing of files from one personal computer to another without a central server that would permit the companies to observe what content was being shared. Grokster and StreamCast claimed that the difference immunized them from liability on the theories that brought down Napster, but copyright holders argued that, without the option of contributory infringement actions against alleged facilitators, legal defense of their copyrights would require the far more costly strategy of individual actions against file sharers themselves, a vast and decentralized group. …

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