LA Legally Speaking Pamela Samuelson Did MGM Really Win

M GM’s media blitz has given the impression that the entertainment industry won an overwhelming and broad victory against peer-to-peer (P2P) file sharing and file-sharing technologies when the Supreme Court announced its decision in the MGM v. Grokster at the end of June. MGM can, of course, point to the 9-0 vote that vacated the Ninth Circuit Court of Appeals’ decision that Grokster could not be charged with contributory infringement because it qualified for a safe harbor established by the Supreme Court in 1984 in its Sony v. Universal decision (see the June “Legally Speaking” column). The safe harbor protects technology developers who know, or have reason to know, that their products are being widely used for infringing purposes, as long as the technologies have, or are capable of, substantial noninfringing uses (SNIUs). The Court in Grokster saw no need to revisit the Sony safe harbor. However, it directed the lower courts to consider whether Grokster actively induced users to infringe copyrights, a different legal theory. MGM didn’t really want to win Grokster on an active inducement theory. It has been so wary of this theory that it didn’t actively pursue it in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought the Supreme Court would be so shocked by the exceptionally large volume of unauthorized upand downloading of copyrighted sound recordings and movies with the aid of P2P technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging dis-