The Berkman Center recently filed an amicus brief with the Supreme Court in the pending Grokster case. Because of evolving technology and the rise of the Internet, entertainment companies have found it harder and harder to protect their copyrighted material from unlawful distribution. The twenty-year old Sony standard, a case decided when video tape recorders were becoming popular, is currently the guiding legal standard and permits technology with potentially infringing uses to be lawfully produced so long as the technology has “substantial noninfringing uses” as well. So, one can purchase a VHS cassette player because one is allowed to record home movies on it, even though one could theoretically also use the player to record copyrighted films rented from the video store. This standard is now in danger of being overturned, and the Berkman Center has rightfully stepped up to defend it.
The Berkman Center brief makes three main arguments. First, that the Sony case struck a balance between the interest in protecting copyright and the interest in encouraging innovation; second, that emerging business models may remedy the economic damage being caused on entertainment companies, making legal action premature; and third, that Congress, and not the Supreme Court, should be the preferred vehicle for implementing changes to copyright law.
These are sensible arguments that the Supreme Court will hopefully follow. The Grokster case has brought to light some interesting divisions within companies due to the ever increasing consolidation among entertainment and technology companies. For example, Sony has both a technology division that produces computers and DVD burners, and an entertainment division that produces films and music. Which side to support?
Even artists are divided on the question. Some artists, such as Metallica, have waged a virtual war on those who use online file sharing services, while other artists, mainly independents, have actively encouarged the sharing of their music in a bid to gain a wider audience.
Silicon Valley wants copyright law to remain just the way it is, while Hollywood and New York want it to grow ever more restrictive. If the Court intervenes it will essentially be choosing sides in a war that should be fought in the marketplace, not in the courts. The Berkman Center proposal is therefore the right way to go.