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The Supreme Court of the United States began hearing arguments in the MGM v. Grokster case. At the heart of this case is whether Grokster should be held liable for infringing uses of their software if there are also substantial non-infringing uses.
P2P pundits have long cited the 1984 Sony Betamax case, and rightly so. This case granted certain fair-use rights to American consumers and was emulated in countries around the world.
As we here at tinfoil.music have stated before, holding Grokster liable for what the users do with the software will have chilling effects on P2P technology as well as the entire tech industry. Photocopy machines have substantial non-infringing uses but can, and are, used to illegally photocopy content from books and other copyrighted material. Should Xerox be on the hook for that?
Judge Antonin Scalia questioned this as well, proving once and for all that there may be a small glimmer of intelligence and good ol' tech knowledge on the bench. He called MGM on it [is this supposed to be a sentence? I know you are loosening up your "style" tinfoil, but . . . -- ed.]. Here is an observation from someone at the case:
At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.
MGM's answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal. However, now that they've conceded to the contrary in open court, if they actually win this case they'll be barred from challenging ripping in the future under the doctrine of judicial estoppel. In any event, though, MGM's iPod example did exactly what their proposed standard expressly doesn't do: it evaluated the legality of the invention based on the knowledge available to the inventor at the time, not from a post hoc perspective that asks how the invention is subsequently marketed or what business models later grow up around it.
Source.
This is an important question and essentially the crux of the entire case. How can we expect inventors to look into the future for possible infringing uses of their product when not even the industry itself can?
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