The Ninth Circuit Court of Appeals has unanimously upheld the district court’s ruling that Morpheus and Grokster are not liable for copyright infringement of the peer-to-peer software’s users.
[T]he district court’s grant of partial summary judgment to the Software Distributors is clearly dictated by applicable precedent. The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners’ immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.
The ruling reaffirms the validity of the 20-year-old Betamax doctrine in the Internet age: technologies need be “merely capable of substantial non-infringing uses” to be lawful. This standard has let technologists develop products to the public’s demands, without forcing them to ask permission first or second-guess every device that comes in contact with entertainment media. When we move away from that pattern, as in the broadcast flag’s technology mandates we see less capable devices offered to the public — fewer features for more money.
When the focus shifts to Congress, as many have observed it will, the Ninth Circuit opinion and the history of technological innovation it references give plenty of grounds for caution.
Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude. Indeed, the Supreme Court has admonished us to leave such matters to Congress.
Congress should be cautious of listening too closely to the incumbent big-publisher/big-lobbyist copyright holders, and listen to the broader public that benefits from disruptive innovation.