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Features: Betamax: Back to the Future
Posted by Ren Bucholz on Tuesday, February 10 @ 13:49:21 EST File Sharing
In last week's Ninth Circuit oral argument in the MGM v. Grokster case, Judge Noonan opened the proceedings by asking Russ Frackman, lawyer for the recording industry: "Everything you said could have been applied to Sony, so what's the difference?" Good question. Thanks to the Oyez Project, we can go back and listen to the 1983 Supreme Court oral argument in the Sony Betamax case to answer it.

Listening to the arguments side-by-side is more than déjà vu, it's downright eerie. Disney and Universal were represented by Steve Kroft in 1983, but Frackman was so on-message last week that he could've been reading from Kroft's 21-year-old script.

Let's start with Frackman's claim that P2P systems don't have significant noninfringing uses. He downplayed evidence that public domain material, shareware, authorized concerts and books are found on P2P networks, claiming that 90% of P2P usage is infringing. Here's Kroft in '83:
Petitioners only put on evidence from a few educational, sports, and religious people ... All that the Petioner's survey showed was that the Betamax is used 9% of the time to copy that type of material, as opposed to 80% of the time to copy the type of entertainment programming owned by the respondents and the amici that have come to this Court. On those numbers and the evidence before the trial court, it never could have made a finding that Betamax was suitable -- the off the air recording aspect -- was suitable for substantial noninfringing use.
[55:38]
Another of Frackman's themes was that P2P software makers should have worked with the music industry to install filters to prevent infringement. Flashback to 1983, when Kroft said:
The real way for Sony to have avoided this problem would have been to cooperate with the copyright owners in devising technology which would allow the broadcaster to jam the video recorder from copying the kind of material that is owned by people who object. That is the only sure fire way to do it.
[28:57]
Later in last week's argument, Judge Thomas took Frackman's argument (knowledge - ability = contributory infringement) to its logical conclusion by asking whether he thought Xerox should be held liable when a UCLA student uses a photocopier to make infringing copies. Here's what happened to Kroft in '83:
Justice Stevens: Under your test, supposing somebody tells the Xerox people that there are people making illegal copies with their machine, and they know it. What are they supposed to do? ... Your view of the law is that as long as Xerox knows that there is some illegal copying going on, Xerox is a contributory infringer?

Kroft: To be consistent, your honor, I'd have to say yes.

Justice Stevens: A rather extreme position.
[31:01]
So what's your take? Two of the content industry's best advocates, twenty years apart, have come to the same conclusions about multipurpose technologies that are used for copyright infringement. If Frackman succeeds where Kroft failed, the court will develop a new, expanded definition of secondary liability that forces technology manufacturers to seek Hollywood's blessing before going to market. If not, perhaps we'll see another twenty years of unprecedented advances in technology. No matter what the court decides, Tuesday's argument made it abundantly clear that MGM v. Grokster is not about the end of piracy, but the future of innovation.

Thanks, Fred!
 
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Re: Betamax: Back to the Future (Score: 0)
by Anonymous on Tuesday, February 10 @ 19:51:15 EST
Why just Hollywood?

I understand why you said that they'd need Hollywood's blessing, but why couldn't any person who had reason to believe their works were being widely infringed cry foul?

What I'm asking here is "where would liability like that stop?" It would seem that anyone should be able to claim that the device makers didn't do enough to accomodate them, personally...


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