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CONTACT: David Fish
September 7, 2004
(202) 289-8928
Supreme Court Should Review Grokster Case
Adkinson and Singleton Fault Lower Court Decision

WASHINGTON D.C. - The recent U.S. Court of Appeals ruling in California that file-sharing companies Grokster and StreamCast are not liable for copyright infringement is a good candidate for Supreme Court review, according to two legal and policy experts at a prominent Washington, D.C. think tank. In fact, citing legal and policy arguments, they believe the high court's involvement is both needed and likely.

"I believe the Grokster decision is wrong, and that its failure to impose liability on such P2P systems could have devastating effects on efforts to develop legitimate markets for online content," writes Progress & Freedom Foundation Senior Policy Counsel William F. Adkinson, Jr. in a blog entry. "Hopefully, the importance of this decision will lead the Supreme Court to grant cert and decide for itself whether these systems should be subject to contributory infringement liability... " He published a study earlier this year.

While he believes P2P technology "should not itself be attacked," Adkinson argues that holding file-sharing businesses liable is both appropriate and necessary to effective enforcement. He points out that "these file-sharing businesses are designed primarily to promote infringement on a massive scale" and that "they may induce unsuspecting kids to engage in illegal infringement..." He maintains that "a proper balancing of the [key] factors... would lead to liability for Grokster et al without threatening innovation."

Foundation Adjunct Fellow Solveig Singleton poses the question, "How could a future court do better?" in a recent blog, and constructs an innovation-friendly "test" to "catch Grokster and not Xerox or iPod". Singleton lists key factors derived from Sony, Judge Richard Posner's Aimster opinion and Adkinson's study: the defendant's level of control over violators; whether the main uses of the technology are illegal; the cost of measures that could be taken to reduce violations and the distributor's level of knowledge of violations. She follows this up with a grid comparing different products based on some of these factors.

"If we are not to be indifferent to continued violations and wish to preserve the freedom to innovate, the best direction for a court would be to look to the mental states of particular defendants - targeting very particular uses of technology, not whole technologies," Singleton blogs. "In a nutshell, it means avoiding 'turning a blind eye.' But the Grokster court believed that Sony does not permit this, and these inquiries into mental states are always difficult. One hopes the Supremes will grant cert.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation