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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.”
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.
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.