Law.com -- In Victory for Grokster, Peer-to-Peer Wins at 9th Circuit
...Thursday's panel drew a distinction between Grokster and Napster, which shut down after A&M Records v. Napster, 239 F.3d 1004, and A&M Records v. Napster, 284 F.3d 1091. Its assets were purchased, and Napster is now a paid service.
Where Napster used a centralized index to tell people where to look for files, the newer programs do not, meaning they have less control over the traded content, according to Thursday's opinion.
Michael Page, the Keker & Van Nest partner who argued on behalf of Grokster, said because Grokster cannot police its index, like Napster was required to do, the only other recourse would be to shut down completely.
"But they won't do that because of non-infringing uses," Page said, pointing out that lots of people use the program to trade content that is not protected by copyright.
Besides the Napster cases, the ruling also heavily relied upon the historic U.S. Supreme Court decision involving Sony Betamax.
In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, the high court in 1984 decided that the sale of videocassette recorders did not create liability for copyright infringement even though the defendants knew that's what people were doing with the machines.
"If the Supreme Court had gone the other way in [Sony] Betamax, it would have made VCRs illegal," Page said.
The Sony Betamax case is also one of the reasons why many people, including Page, believe Thursday's ruling will actually benefit the movie and record industries down the line.
If VCRs had been outlawed, the video business that studios profit from today would not exist, Page said.
"Every time new technology comes along, studios first try to [shut it down], and each time courts say 'no you can't,'" Page said. "And each time, they turn around and figure out a way to make money."
The movie and music industries could start subscription services, use peer-to-peer to distribute premium content, sell advertising -- "there are all sorts of examples," Page added.
So far, though, the plaintiffs don't agree...
