Grokster: No Impetus for New Copyright Legislation

At the Congressional Internet Caucus Advisory Committee panel discussion on Tuesday, most people seemed to agree on one point about the Grokster decision – we don’t need new copyright legislation (at least not yet).

This general consensus concurs with my recent article on Grokster. It’s just too early to tell how the courts will apply the court’s active inducement test. And I’ve heard it said somewhere that it takes three years to feel the effects of a Supreme Court decision (not including grants of habeas corpus petitions of course).

Yet some groups want action now. According to EFF’s Fred von Lohmann, “the Supreme Court left too many unanswered questions, von Lohmann said, adding, “I don’t believe that uncertainty is balance. We need clear, bright-line rules so that technology companies can know in advance what they are and are not allowed to build.”

According to the CNET article in which he was quoted, von Lohmann suggested two possible ways to legislate:

First, Congress should implement a “collective licensing” system for peer-to-peer file sharing, wherein users would pay a “reasonable fee,” which would in turn be passed on to the copyright holders. Second, lawmakers should scrap the idea of statutory damages–that is, money awarded to copyright owners because of provisions in the law–but leave open the option of awarding actual damages and injunctions through the court action.

As my astute intern for this summer, Dan Corbett, observed:

I think collective licensing is a great idea, but only if it’s voluntary. I think the Grokster fallout is going to be an interesting time for technology. I’m not a fan of the decision, but I know it could have been much worse. Thankfully technology still has room to breathe, and in time, I think we’ll be seeing some cool new ways to enjoy music that fit with the new Grokster standard.

And as for a bright-line test? A terrible, terrible idea. Granted, it would give new technologies a better idea of what to expect, but it would invalidate many technologies before they even got off the ground. A bright-line test is only a good thing if the alternative were a sloppily applied Grokster (and one that ignored Sony, too), which I hope won’t be the case.

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