COPYCENSE

"The Supreme Court recently issued its much-anticipated decision in MGM Studios, Inc. v. Grokster, Ltd. The decision clarified to some degree the Court’s approach to balancing the competing values of supporting creative pursuits through copyright protection and promoting innovation in new technologies by limiting secondary liability for copyright infringement.

"But the decision leaves undefined the precise contours of a critical ‘safe harbor’ for developers and distributors of new products and services, defers many difficult issues for resolution in future cases, may lead to increased litigation, and will likely make it more complex to litigate cases involving allegations of secondary liability."

Cooley Godward. The Supreme Court Decision in MGM v. Grokster. July 12, 2005.

See also:

EFF Deep Links. Grokster = More Fair Use Cases? June 28, 2005.

Larry Lessig asked me for a pointer to the Hollywood movie studios’ response to my request to use a few seconds of their films for a home movie project I was making with my 5-year-old — not for posting on the Web, just for showing off to family or friends.

Four of the studios refused outright, two refused to respond, and the seventh wobbled.

Darknet. When The Studios Won’t Give Permission. July 8, 2005.

“At a recent private book reading by Siva Vaidhyanathan and Larry Lessig at Stanford, both spoke at length about the future of fair use, revealing a schism in perspective. Siva is generally more hopeful, Larry characteristically pessimistic. Siva suggested that society and the court system might eventually have more promising answers to the current conflicts over copyright; Larry, meanwhile, argued that “fair use is the right to hire a lawyer.”

“Today, Siva has a sad tale suggesting that most people have begun to agree with Larry — and worse, that society’s gatekeepers of fair use — librarians, educators, school administrators — are letting it happen.”

Corante. Fair Use It or Lose It. July 7, 2005.

I am preparing an article on fair use for Online magazine, and part of the article deals with the costs of litigation. Despite the music and movie industries’ widespread litigation campaign against alleged infringers, I have found surprisingly little information online that analyzes the costs of copyright litigation.

(I posed this question to Fred von Lohmann at the Electronic Frontier Foundation quite a while ago, and at the time he was unaware that any data had been collected on this topic.)

I did run across this interesting analysis published in the Legal Theory Blog in 2003 (about the same time I posed my question to Fred). In it, Lawrence Solum, a law professor at the University of San Diego, looks at litigation costs from the perspective of copyright owner and alleged infringer. The analysis is a tad too theoretical for my purposes, but it is a good analysis nevertheless.

Legal Theory Blog. Copynorms & Litigation Costs. July 10, 2003.

Grokster relied heavily on a case that the Supreme Court had decided many years ago involving Betamax, a predecessor to the VCR. And so it is argued that file sharing of copyrighted music and film may also turn out to have unexpected benefits for the copyright owners themselves.

But the logic of this argument is that there can never be liability for contributory infringement because the possibility can never be excluded that the product or service offered by the alleged contributory infringer. There is a possible middle way that should be considered.

The Becker-Posner Blog. Grokster, File Sharing, and Contributory Infringement–Posner. July 3, 2005.