WASHINGTON D.C. - The U.S. Supreme Court should rectify a lower court case regarding liability of peer-to-peer (P2P) software providers, given that the Ninth Circuit "abdicated its duty to address" the balance between technology innovation and copyright protection in MGM v. Grokster, two Progress & Freedom Foundation fellows said today.  In an amicus curiae filing with the Supreme Court, senior fellows James DeLong and Solveig Singleton cited three tests the High Court could use to determine if it should take the Grokster case, and said those three tests make "the argument in favor of granting certiorari overwhelming."

"Consumers face a problem of the type known as Prisoner's Dilemma," DeLong and Singleton told the court.  "Each consumer is better off if he or she has total access to unauthorized file-sharing while every other consumer pays for the music.  But when everyone tries to free ride on everyone else, the whole system collapses."  The Seventh Circuit in the Aimster case sought to balance technological innovation with consumer protection, but the Ninth Circuit focused solely on technology.  "Consumers are not served by the existence of an infinite amount of dazzling hardware if they have no content for it," DeLong and Singleton wrote, "nor are they served by libraries of content if they lack means to enjoy it."

In deciding whether to take on the case, Rule 10 of the Court sets forth three tests.  On the first test - is there a conflict in the circuits on an important matter - DeLong and Singleton point to the split between the Seventh and Ninth Circuits.  The second test is whether the question should be settled by the Supreme Court.  Intellectual property law "has always had a large component of judge-made common law," DeLong and Singleton argue, noting that fair use "is fundamentally a judicial creation, as are doctrines of contributory and vicarious liability."  The final test is whether the circuit court rulings touch on previous Supreme Court cases.  The amicus brief argues that Aimster and Grokster both address two key High Court decisions, Sony Corp. v. Universal City Studios and Ashcroft v. Eldred.

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.