Interpreting Grokster: Protecting Copyright in the the Age of Peer-to-Peer
Tuesday, July 19, 2005
Last month the Supreme Court ruled in the much-anticipated copyright case MGM v. Grokster, addressing the issue of whether the creators of certain peer-to-peer programs could be held liable for the illegal downloading of copyrighted works using the software. The decision took a major step by finding against the respondents, Grokster and Streamcast, and establishing secondary liability for copyright infringement.
For this event, the Congressional Internet Caucus Advisory Committee (ICAC) assembled a panel of the lead counsels associated with the Supreme Court case including Don Verrilli (Bio) of Jenner & Block, who successfully argued on behalf of the plaintiffs before the Court. Also on the panel was Fred von Lohmann (Bio), who represented StreamCast Networks in the case, and argued before the Ninth Circuit. Last, the panel included Andrew Greenberg (Bio) of Carlton Fields who filed an amicus brief on behalf of the IEEE urging the Court to adopt an active inducement standard, which it did.
The event was opened by Representative Robert Goodlatte, who applauded the unanimous decision, calling it "pro-consumer" and noting its careful balance between encouraging innovation and protecting copyright. Arlene McCarthy, a member of the European Parliament from the UK who is part of a delegation visiting Washington this week for a series of meetings, followed Rep. Goodlatte's comments with some of her own, focusing on the European Internet Foundation's current work.
Verrilli concurred with Goodlatte, arguing that Congress should let the lower courts consider the issues and crystallize the decision. "I think (the) court has done a good job in striking the balance with the standard of inducement that it has set forth here." He argued that "the Court got the basic idea right," setting a "common-sense standard" that is suitably clear and isn't overly burdensome.
Von Lohmann disagreed, saying that he didn't think the Supreme Court had answered all the questions raised by the case, and had created a "legal minefield," where if technology developers "bet wrong, they go out of business." Peer-to-peer companies (and other technology developers) should be given the opportunity to fairly compensate copyright owners, or pay actual damages after the fact, rather than face statutory damages and possible bankruptcy.
Patent lawyer Andrew Greenberg downplayed von Lohmann's gloomy predictions of a powerful chill on innovation, saying that "I think it's time [for Congress] to wait and see," hoping that the lower courts will more clearly articulate the "rules of the road," and that the various interested parties will find a way to cooperate.
This event was hosted jointly by the Internet Caucus and its Co-Chairs, Senators Burns and Leahy and Congressmen Goodlatte and Boucher, and the Chair of the Wireless Task Force, Congressman Honda.