Once More Into the Betamax Breach (Donna Wentworth)
Yesterday, the major motion picture studios and the recording industry filed a brief [PDF] in MGM v. Grokster arguing that the Betamax defense "should not apply when the primary or principal use of a product or service is infringing." They specifically reject the "mere capability" test that the majority of the Supreme Court endorsed in 1984.
Fred von Lohmann has now posted a response over at Deep Links. The gist? Primary uses for new technologies shift over time. If we substitute a "primary use" test for mere capability, entertainment companies would no longer see the need to explore whether they can ultimately make money from new technologies. Instead, they'd have an "incentive to let slip the dogs of litigation as early as possible," before a new technology starts proving its noninfringing potential. So while the Betamax test has allowed technological innovation to move forward, a "primary use" test would cause it to start moving in retrograde.
Ed Felten also has a must-read post on two of yesterday's briefs -- the Solicitor General's brief [PDF] and a brief from a group of anti-porn and police organizations [PDF]. He points out errors amici are making with regard to technology, arguing that the briefs "are caught between nostalgia for a past that never existed, and false hope for future technologies that won't do the job." In the effort to bring down Grokster et al, for example, they make arguments that could apply to the Internet as a whole:
These arguments (as the lawyers say) prove too much, as they would apply equally to the Internet itself, which is ignorant of use and content, does not register most of its users or monitor their activities, does not limit the types of files that can be shared, and is generally anonymous, decentralized, unsupervised, and unfiltered.
Fascinating stuff -- and no doubt there will be much more to come. Once again, the spots to watch for briefs are here and here. [Copyfight]