Yesterday I posted my initial thoughts while reading the Supreme Court opinion of MGM v. Grokster. Today I will post any additional thoughts on the two concurrences on the ruling. Here's a quick review of the case and the Supreme Court decision, to be followed by my comments. Grokster (and StreamCast, its co-defendant) offer products which can be used to infringe on copyright. They were sued by MGM and other copyright holders for contributory and vicarious infringement on copyright. Grokster was held to not be infringing by the District Court and by the Appeals Court on the basis of Sony v. Universal, which held Sony not liable for copyright infringement for producing VCRs because the VCR is capable of substantial noninfringing uses. The Supreme Court overturned the Appeals Court ruling on the basis that Grokster's intent was to enable copyright infringement, making them liable for inducing copyright infringement.
Ginsburg's concurrence briefly acknowledges the discussion of inducing infringement in the opinion and then goes on to discuss contributory infringement. She focuses on "substantial noninfringing use" as applied in Sony. That ruling held that recording broadcast television programs to watch at another time constituted fair use, and therefore substantial noninfringing use.
The opinion did not address the question of contributory infringement, finding inducing infringement sufficient to create liability. While it raised the question of what type of behavior is sufficient to induce infringement, it avoided the question of what makes a noninfringing use substantial. Ginsburg would raise the bar for substantial noninfringing use. She dismisses the evidence presented in favor of noninfringing use in the case and indicates that the proportion of noninfringing files distributed over the network to the number of infringing files distributed should determine whether the noninfringing use is substantial.
She doesn't set any numbers, but it is clear that the noninfringing 10-25% of files available on Grokster is not sufficient. This is contrasted to Sony, in which 10% of taping was authorized by the broadcaster. The distinction here may be less clear than she intended, although it is true that Sony held that most of the taping of the other 90% of broadcasts constituted fair use, while she denies the possibility of any fair use in copying files over filesharing networks.
Breyer's concurrence is a response to Ginsburg. He states that because of the ruling on inducement, consideration of contributory infringement is not necessary. But since Ginsburg brought it up, he will discuss it as well.
I had the impression that Sony clearly stated that recording a program to watch at another time, even without the permission of the broadcaster, constituted fair use. Furthermore, recording programs to build a personal library was at least potentially fair use. Breyer asserts that Sony indicated that the first use might be fair use and the second is clearly not. As in Souter's opinion, Breyer's concurrence makes an interpretation of Sony that disagrees with my previous understanding of the ruling. Again, I can't judge at this time whether my previous understanding was inaccurate or whether the current ruling is seeking to change the meaning of the prior ruling without acknowledging that it is doing so. (Breyer later states that Sony did ultimately conclude that recording programs to watch at another time is in fact fair use. He initially minimizes that conclusion to strengthen the argument that a relatively low percentage of authorized use qualifies as a substantial use.)
Like Souter in the opinion of the Court and Ginsburg in her concurrence, he turns to patent law to resolve this question of copyright law. Ginsburg argued that capability for substantial noninfringing use was not sufficient. Substantial noninfringing use also had to occur in practice. Breyer quotes both previous rulings in patent cases and Sony to conclude that capability is sufficient.
Breyer then turns to the same statistics I questioned in Ginsburg's ruling. It's always exciting to find that a Supreme Court Justice shares the same thoughts you did on a case. Of course, he goes a step further, pointing both to the anecdotal evidence and the statistical evidence of authorized copying in Sony, rebutting Ginsburg's dismissal of the anecdotal evidence and her interpretation of the statistical evidence in the current case.
Breyer's discussion of contributory infringement is explicitly not directed toward the current case. He's protecting the freedom to create new technologies which may have both infringing and noninfringing uses. "But Sony's standard seeks to protect not the Groksters of the world..., but the development of technology more generally." I think that's awesome.
Dude. Breyer just gets better and better. He rhetorically asks if Sony should be modified or interpreted more strictly. "In particular: (1) Has Sony (as I interpret it) worked to protect new technology? (2) If so, would modification or strict interpretation significantly weaken that protection? (3) If so, would new or necessary copyright-related benefits outweigh any such weakening?" He answers, "Sony's rule is clear," "Sony's rule is strongly technology protecting," "Sony's rule is forward looking," and "Sony's rule is mindful of the limitations facing judges where matters of technology are concerned." That's just beautiful.
It's probably obvious that I think Breyer engaged in a glorious smackdown of Ginsburg. The fact that I'm inclined to agree with him probably has biased my judgment. Ultimately, my judgment isn't the important one. Three justices signed Ginsburg's concurrence and three signed Breyer's. That leaves three who signed neither.
Grokster and StreamCast have been nailed by inducement, but they are far from the only sources of file sharing technology. Some sources may have been more careful to not promote copyright infringement. Whether they can be found liable for contributory infringement depends on the three justices who signed neither concurrence. File sharing will return to the Supreme Court, and the next case will determine more about the relationship between technological advances and copyright than this one did.