Expert: Grokster Decision Wont Negate Sony Fair Use Law

By John Pallatto  |  Posted 2005-06-27 Email Print this article Print

The 1980s ruling that videocassette copying is legal for home use doesn't apply to Grokster, IP attorney Ralph Oman says, in part because of the scale of digital copying. (

The Supreme Courts decision Monday that Grokster and other file-swapping services can be held liable for illegal downloading doesnt overturn the "fair use" doctrine established in the early 1980s when consumers started buying videocassette recorders to copy television shows and movies, according to a Washington-based copyright attorney. However, how the law is interpreted by the courts will likely change, due to the massive use of digital technology to download, copy and share millions of music and video files, said Ralph Oman, former federal register of copyrights and currently an attorney in the intellectual property group of Dechert LLP, a Washington-based law firm. The case of Sony Corp. versus Universal Studios, which established the fair use doctrine, "is pretty much intact in, perhaps, a way limited by the facts," Oman said. "Three of the justices said the Sony decision is irrelevant in this case and three said [Grokster] had met the Sony criteria and by specific acts had violated those criteria of the Sony decision."
Click here to read details on the Supreme Courts decision in the Grokster case.
The court found that Grokster wasnt "merely selling a device that could be used for infringing activity. It was a device or software that was designed to encourage the illegal activity," Oman said. In that case, Grokster couldnt claim that its file-swapping service represented fair use as was deemed legal in the Sony vs. Universal decision.
Oman was one of a group of attorneys and law professors that filed a "friend of the court" brief with the Supreme Court, arguing the view that "Grokster is trading on the illegal activity of its subscribers," he said. Read details here about why some analysts interpret the Grokster ruling as no threat to P2P applications. Companies like Grokster aim to "induce the infringing activity of their customers, and they benefit from that inducement in terms of being able to sell advertising to increase the number of people who are viewing their site," Oman said. Groksters business plan "requires acts of infringement on a large percentage scale," and that use is "not shielded by the laws limiting liability in the Sony case," he said. The key difference between the two cases is that the video players and recorders in the Sony case were analog devices. Owners couldnt easily use their recorders to produce hundreds or thousands of movie videos for their friends or for anyone willing to pay for them. Read the full story on Expert: Grokster Decision Wont Negate Sony Fair Use Law
John Pallatto John Pallatto is's Managing Editor News/West Coast. He directs eWEEK's news coverage in Silicon Valley and throughout the West Coast region. He has more than 35 years of experience as a professional journalist, which began as a report with the Hartford Courant daily newspaper in Connecticut. He was also a member of the founding staff of PC Week in March 1984. Pallatto was PC Week's West Coast bureau chief, a senior editor at Ziff Davis' Internet Computing magazine and the West Coast bureau chief at Internet World magazine.

Submit a Comment

Loading Comments...
Manage your Newsletters: Login   Register My Newsletters

Thanks for your registration, follow us on our social networks to keep up-to-date
Rocket Fuel