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Amicus Brief: MGM vs. Grokster (Supreme Court Case No. 04-480)


Summary of Argument:

In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), this Court held that the manufacture and distribution of technology that is sometimes used to engage in copyright infringement does not give rise to secondary liability so long as the technology in question is “capable of substantial noninfringing uses.” Id. at 442. For the purposes of this brief, amici curiae assume (a) that the standard articulated in Sony governs claims for vicarious infringement as well as claims for contributory infringement; and (b) that the standard was properly applied by the courts below to the facts of this case. The brief is concerned solely with the scope of the  "staple-article-of-commerce defense” articulated in Sony. Specifically, amici contend that the Sony standard has proven to be an effective means of balancing the interests of copyright owners with the equally important need to
preserve incentives for technological innovation— and thus that the Court should not now modify the standard.

Part I summarizes the enduring merits of the Sony test and the hazards of changing it. Parts II and III rebut the argument made by some of the participants in this case that the need to protect the revenues of the entertainment industry requires adoption of a more stringent test. Part II does so by surveying recent technological and marketing innovations in the music and film industries that offer copyright owners promising ways of repairing whatever financial injury they may have sustained—or may in the future sustain—as a result of unlawful uses of “peer-to-peer” filesharing systems. Part III contends that, if those new business models prove insufficient and, consequently, adjustment of the copyright system is necessary to provide copyright owners both fair returns for their efforts and incentives to engage in creative activity, then modification of the standard
for secondary liability would be inferior, for several reasons, to either a streamlined dispute-resolution system,
enabling expeditious and inexpensive processing of claims against direct infringers, or a compulsory-licensing regime. Congress is better equipped than the Court to decide if any such reform is necessary and, if so, to select and implement the best of the options.