Wednesday, March 30, 2005

MGM v. Grokster

The supreme court heard the Grokster/MGM oral argument today and people packed the courthouse (which, I guess, doesn't usually happen). Lots of different lawyers and computer geeks blogged about the event. One in particular struck me as informative and funny:

O.K., it's not nice to make fun of people recovering from thyroid cancer. But it was still funny to hear the Chief Justice of the Supreme Court speak into the microphone with this Darth Vaderish wheeze and say things like "Will our decision release Grokster all over the world?" I swear, he could have thrown in a manical laugh and it would not have been out of place. Another thing that occurred to me is that if people ever could listen to Supreme Court arguments via streaming or traditional media, it would make very little sense to non-lawyers. For example, you get exchanges like: Scalia (sarcastically): But doesn't this come to us under summary judgement? Lawyer: Yes, but under rule 56(b) we are entitled ... Scalia: Surely you aren't accusing us of applying 12(b)(6)? [laughter from Supreme Court Bar section, total confusion in regular audience section]
For those of you living under a rock, Grokster is a file sharing program and MGM is trying to get their website shut down. In other words, they don't want the program distributed anymore. The program, which is still free and available on their website, is impossible to shutdown because Grokster does not have control over it or the people who use it.


At 3/30/2005 05:11:00 AM, Anonymous Anonymous said...

If MGM (and friends) were smart, they wouldn't go the route of the RIAA and try to shut it down. MGM should distance themselves from the public backlash. You litigate with Grokster and eventually levey royalties against Grokster. Grokster can still operate but they have to pay an amount proportional to the bandwith their program uses or the number of downloads of their software they have. (Some figure that is measureable.) This way, Grokster looks to offset this cost by charging users a monthly fee. 1.) People are disuaded by this so less people use the software 2.) Grokster loses public favor because they are charging for their software 3.) MGM (and friends) still make money but do so behind the veil of Grokster's monthly fees

But then again, I'm no lawyer.


At 3/30/2005 10:39:00 PM, Blogger Nippons Boy said...

Ok some updates: I just learned that my property prof was at the oral argument. She seemed to think that grokster was going to get hammered for willfully encouraging people to download things illegaly. However. She didn't think the Supremes would go so far as to outlaw the distribution of similar programs.

She said she thought the MGM lawyer really knew his stuff, but that the Grokster lawyer didn't hold himself together very well.

The only problem I can find with your remedy is that Grokster can be used for purely legal activities. Moreover, Grokster does not have any control over their program so they have no idea if people are using it illegally or not. In other words, there is no way to track how many MGM copyrights, if any, are being infringed upon. I have a hard time seeing the Judges saying that Grokster has to pay MGM for a hypothetical number of copyright infringements. Moreover, this would send a message that anybody with a copyright can sue filesharing distributors to extort money even if there is no actual infringement.


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