Tech industry weighs in on Grokster
Various technology industry players have filed amicus briefs in support of upholding the 9th Circuit ruling in the MGM v. Grokster case being argued next week. These include Intel, smaller technology companies such as Kaleidescape, various telecommunications industry associations and the National Venture Capital Association. However the Business Software Alliance has filed an amicus brief in favor of reversal, but without advocating for reversal of the Sony Betamax doctrine.
The BSA brief notes that it has both compelling interests in copyright protection as well as in technological innovation. It cites the estimated annual piracy figures of $7.2 billion in the content industry and $32 billion in the software industry. However it contextualizes these losses by comparing them to the $500 billion that the Department of Commerce estimates is spent annually on IT hardware and software procurement in the U.S., and to the $1 trillion in annual sales of U.S. information technology companies and their overseas affiliates.
The BSA brief makes two points: (1) the Betamax doctrine should be left intact (with the “capable” of substantial noninfringing uses standard) and the interpretation of it in the 7th Circuit’s Aimster decision should be rejected; and (2) the defendants in Grokster may have engaged in conduct that falls outside the Betamax doctrine -- by encouraging and teaching the use of the technology for infringing purposes, and the case should be remanded on this basis.
The BSA argues that “direct involvement” in infringement is the dividing line between protection under the Betamax doctrine, and asks the Supreme Court to confirm that customary contact with customers, such as advertising, product support and upgrades, is covered by the Betamax exemption. The BSA argues that some conduct by the defendants in Grokster may have crossed this line, by specifically promoting the availability of infringing content.
The BSA also argues that in the case of material contribution to infringement that falls outside of the Betamax doctrine, constructive knowledge of infringement, rather than actual knowledge of specific infringing acts, should be sufficient to impose liability.
And finally, some technology companies have taken a neutral position, filing amicus briefs with factual information on the availability of effective filtering technology. These include Audible Magic, Snocap and iMesh.com, and other purveyors of digital media technologies. This information could be a factor in the decision if the Supreme Court focuses on the ability to redesign a product that is used for infringing purposes or on steps that could be taken to prevent infringement.
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