Press Release
Consumer and Public Interest Groups File Briefs in Grokster Case
Contact: Timothy Karr, 201-533-8838
WASHINGTON -- Four major consumer and public-interest groups today urged the U.S. Supreme Court to uphold the balance between copyright and technological innovation from the 1984 Sony Betamax case that allowed use of video recorders.
The brief, filed by the Consumer Federation of America, Consumers Union, Free Press and Public Knowledge, argued that the principles from the Sony case "helped to generate enormous public benefits while assuring fair and reasonable compensation to copyright owners. Modifying the Sony principle would provide copyright owners with a roving commission to censor new information technology."
Here are excerpts from the brief:
This case raises fundamental questions about the proper relationship of law and technology, which strongly implicate the public interest in access to information.
Amici's members and the public at large have benefited from the innovative technologies that have developed under the standard for secondary liability articulated by this Court in Sony. In this unprecedented effort to harness copyright law to regulate multi-purpose information technology, rather than technology use, Petitioners … seek to reverse the core principle restated by this Court in Sony. This venerable rule of general applicability, dating back to the first British and U.S. copyright statues, has benefited the pubic by creating the legal conditions for rapid, widely accessible innovations in information and communications technology.
This case puts at risk the salutary approach to regulation introduced in response to the first "technology of freedom."
The law in question is not just any law; rather, it is the law of copyright, which this Court recently has noted has an intimate connection to the cherished constitutional values of free expression. Nor are the technologies involved ordinary ones. Rather they are "technologies of freedom."
This is also a dispute about striking the proper relationship between the private and public spheres. It raises profound questions about how far our society should go in protecting the state-conferred and constitutionally limited private monopolies into public fora where citizens rely on information and communications technology to enable personal expressive freedom.
The Statute of Anne introduced the principle that copyright should regulate technology use, not technology.
The first copyright statute ushered in a fundamentally new approach to the regulation of information production, fueled in part by the distrust of monopoly power characteristic of the early 18th century. Like every copyright law that was to follow in Great Britain and the United States, the Statute of Anne focused regulatory authority on the users of information technologies rather than on the technologies themselves.
In the ensuing decades and centuries that followed, access to (and distribution of) print technology and, consequently, of printed works increased dramatically. Book prices fell, and a wider variety of books became available. The ultimate beneficiaries of these trends were the members of the reading public – the typical information consumers of the age of print. The Statute of Anne was understood then and since as a necessity to protect political expression, as communications technology was and remains integral to the public's ability to engage in political speech.
Access to technology is anecessity if American consumers are to benefit from social, economic and cultural progress.
From printing presses in the 18th century, to the telegraph in the late 19th century, to cinematography at the turn of the 20th century; to radio in the 1920s, to photocopying in the 1970s, to VCRs in the 1980s, to CD burners in the 1990s. ... despite a series of "technology panics" characterized by fears that new modes of reproduction and communications might undermine the structure of incentives embedded in the copyright laws, courts have held firm to the core principle of the Statute Anne: that copyright should regulate the users of technology rather than the technology itself.
The First Amendment is based on an implicit premise that benefits all Americans: Freedom of speech is best fostered by a bustling and vibrant marketplace of ideas. As vendors have moved from the soap box to podcasting, from UHF to HDTV, and from dittos to digital scanning, technological innovation has consistently extended that marketplace to such indispensable realities as improved education, greater entrepreneurial efficiency and enriched artistic expression.
Consistent with the free-speech ideals it enhances, technological innovation has historically been the most energized when the most people have contributed to it. As reflected in important fair use decisions, technological innovation often originates in minds freshly exposed to the work of others. In addition, a technology's original producers often only become aware of improvements after their products are tested by consumers. Common sense says the probability for such grassroots quality control and "R&D" naturally increases through greater user access.
Greater access to technology also has had the socially desirable effect of expanding the market to which entrepreneurs might cater. Access to technology ideally relates directly to product access and, at the very least, facilitates product awareness. Correspondingly, the competition to obtain greater shares of a growing market leads to more efficient distribution of resources, trimmer profit margins and incentives to improve existing technologies and services.
The Sony principle strikes a balance between competing interests, rather than inviting further balancing in its application. It does not excuse all providers of multi-purpose information technology from liability, but sets a high standard in such cases.
The principle of immunity from secondary liability for providers of multi-use technologies is, in itself, the outcome of a reasoned exercise in interest balancing, in which the private interest in control of copyrighted subject matter was weighed against the public interest in access to information technology. It should not be construed as a direction to engage in further balancing when applying the Sony principle.
Under this Court's decision in Sony, providers of communication and information technology can be liable when they act in concert with particular infringers. Like the general Sony principle limiting secondary liability, this latter proposition was adopted from the pre-Sony case law on secondary liability.
But the overall number of reported cases involving a Sony-based defense has remained remarkably low even as information technology has played an ever-larger part in copyright jurisprudence. Because Sony allows an action to lie against an information technology provider only in unusual circumstances, copyright owners have chosen to enforce their rights against users instead. The clarity of the Sony principle has meant that, for most of two decades, our courts have not been burdened with claims requiring complex factual inquiry and legal line-drawing around the permissibility and impermissibility of innovations in information technology.
By discouraging litigation, the clear Sony principle also has facilitated the development of information and communications technology.Speculative and untested proposals for modification of the core principle of Sony put the proper relationship between copyright and technology at risk.
The "bright line" principle that Sony restated so emphatically has been of incalculable value to the development of information technology (and the welfare of the consumers who depend upon it). Today, to a greater extent than ever before, the legal environment of copyright is riddled with pitfalls, and those who would negotiate it must exercise extreme care.
In this climate, only the clear Sony principle, with its accurately foreseeable application to new circumstances, will adequately protect technology innovators and those who depend upon them. Under conditions of uncertainty, technology innovators will have no realistic alternative except to modify their products and services to meet the prior approval of copyright owners. That, in turn, will mean modifying their technologies to recognize repressive "digital rights management" systems that restrict otherwise lawful consumer use of copyrighted works.
Briefs already submitted in this case reveal a profusion of suggested approaches to revising the Sony principle. ... These revisionist standards all are open-ended in articulation and unpredictable in application. Some depend on determinations of the subjective state of mind of technology providers, and many require courts to decide the issue of secondary liability based on a frozen "snapshot" of a rapidly evolving technological and commercial environment.
Under many of these standards, changes in the market (such as an unanticipated shift from lawful to unlawful activities on the part of users) could negate the value of substantial prior investments. They would impose disproportionate burdens on technology providers, making them (in effect) guarantors of their customers overall good behavior, both in the present and the future.
Moreover, these standards are wholly untested in their potential application to providers of innovative information technology.
Conclusion
By enabling the development and distribution of successive "technologies of freedom," the principle embodied in this Court's Sony decision has helped to generate enormous public benefits while assuring fair and reasonable compensation to copyright owners. Modifying the Sony principle would provide copyright owners with a roving commission to censor new information technology. This Court should not vest control over information technology in the modern-day equivalent of the Stationer's Company. In the short-term, the benefits of such a departure would accrue exclusively to the copyright industries, and the costs to the public. In the longer term, all would share in the resulting cultural, economic and social losses.
Peter Jaszi
Attorney for Amici Curiae
Glushko-Samuelson Intellectual Property Law Clinic
Washington College of Law
American University
The brief, filed by the Consumer Federation of America, Consumers Union, Free Press and Public Knowledge, argued that the principles from the Sony case "helped to generate enormous public benefits while assuring fair and reasonable compensation to copyright owners. Modifying the Sony principle would provide copyright owners with a roving commission to censor new information technology."
Here are excerpts from the brief:
This case raises fundamental questions about the proper relationship of law and technology, which strongly implicate the public interest in access to information.
Amici's members and the public at large have benefited from the innovative technologies that have developed under the standard for secondary liability articulated by this Court in Sony. In this unprecedented effort to harness copyright law to regulate multi-purpose information technology, rather than technology use, Petitioners … seek to reverse the core principle restated by this Court in Sony. This venerable rule of general applicability, dating back to the first British and U.S. copyright statues, has benefited the pubic by creating the legal conditions for rapid, widely accessible innovations in information and communications technology.
This case puts at risk the salutary approach to regulation introduced in response to the first "technology of freedom."
The law in question is not just any law; rather, it is the law of copyright, which this Court recently has noted has an intimate connection to the cherished constitutional values of free expression. Nor are the technologies involved ordinary ones. Rather they are "technologies of freedom."
This is also a dispute about striking the proper relationship between the private and public spheres. It raises profound questions about how far our society should go in protecting the state-conferred and constitutionally limited private monopolies into public fora where citizens rely on information and communications technology to enable personal expressive freedom.
The Statute of Anne introduced the principle that copyright should regulate technology use, not technology.
The first copyright statute ushered in a fundamentally new approach to the regulation of information production, fueled in part by the distrust of monopoly power characteristic of the early 18th century. Like every copyright law that was to follow in Great Britain and the United States, the Statute of Anne focused regulatory authority on the users of information technologies rather than on the technologies themselves.
In the ensuing decades and centuries that followed, access to (and distribution of) print technology and, consequently, of printed works increased dramatically. Book prices fell, and a wider variety of books became available. The ultimate beneficiaries of these trends were the members of the reading public – the typical information consumers of the age of print. The Statute of Anne was understood then and since as a necessity to protect political expression, as communications technology was and remains integral to the public's ability to engage in political speech.
Access to technology is anecessity if American consumers are to benefit from social, economic and cultural progress.
From printing presses in the 18th century, to the telegraph in the late 19th century, to cinematography at the turn of the 20th century; to radio in the 1920s, to photocopying in the 1970s, to VCRs in the 1980s, to CD burners in the 1990s. ... despite a series of "technology panics" characterized by fears that new modes of reproduction and communications might undermine the structure of incentives embedded in the copyright laws, courts have held firm to the core principle of the Statute Anne: that copyright should regulate the users of technology rather than the technology itself.
The First Amendment is based on an implicit premise that benefits all Americans: Freedom of speech is best fostered by a bustling and vibrant marketplace of ideas. As vendors have moved from the soap box to podcasting, from UHF to HDTV, and from dittos to digital scanning, technological innovation has consistently extended that marketplace to such indispensable realities as improved education, greater entrepreneurial efficiency and enriched artistic expression.
Consistent with the free-speech ideals it enhances, technological innovation has historically been the most energized when the most people have contributed to it. As reflected in important fair use decisions, technological innovation often originates in minds freshly exposed to the work of others. In addition, a technology's original producers often only become aware of improvements after their products are tested by consumers. Common sense says the probability for such grassroots quality control and "R&D" naturally increases through greater user access.
Greater access to technology also has had the socially desirable effect of expanding the market to which entrepreneurs might cater. Access to technology ideally relates directly to product access and, at the very least, facilitates product awareness. Correspondingly, the competition to obtain greater shares of a growing market leads to more efficient distribution of resources, trimmer profit margins and incentives to improve existing technologies and services.
The Sony principle strikes a balance between competing interests, rather than inviting further balancing in its application. It does not excuse all providers of multi-purpose information technology from liability, but sets a high standard in such cases.
The principle of immunity from secondary liability for providers of multi-use technologies is, in itself, the outcome of a reasoned exercise in interest balancing, in which the private interest in control of copyrighted subject matter was weighed against the public interest in access to information technology. It should not be construed as a direction to engage in further balancing when applying the Sony principle.
Under this Court's decision in Sony, providers of communication and information technology can be liable when they act in concert with particular infringers. Like the general Sony principle limiting secondary liability, this latter proposition was adopted from the pre-Sony case law on secondary liability.
But the overall number of reported cases involving a Sony-based defense has remained remarkably low even as information technology has played an ever-larger part in copyright jurisprudence. Because Sony allows an action to lie against an information technology provider only in unusual circumstances, copyright owners have chosen to enforce their rights against users instead. The clarity of the Sony principle has meant that, for most of two decades, our courts have not been burdened with claims requiring complex factual inquiry and legal line-drawing around the permissibility and impermissibility of innovations in information technology.
By discouraging litigation, the clear Sony principle also has facilitated the development of information and communications technology.Speculative and untested proposals for modification of the core principle of Sony put the proper relationship between copyright and technology at risk.
The "bright line" principle that Sony restated so emphatically has been of incalculable value to the development of information technology (and the welfare of the consumers who depend upon it). Today, to a greater extent than ever before, the legal environment of copyright is riddled with pitfalls, and those who would negotiate it must exercise extreme care.
In this climate, only the clear Sony principle, with its accurately foreseeable application to new circumstances, will adequately protect technology innovators and those who depend upon them. Under conditions of uncertainty, technology innovators will have no realistic alternative except to modify their products and services to meet the prior approval of copyright owners. That, in turn, will mean modifying their technologies to recognize repressive "digital rights management" systems that restrict otherwise lawful consumer use of copyrighted works.
Briefs already submitted in this case reveal a profusion of suggested approaches to revising the Sony principle. ... These revisionist standards all are open-ended in articulation and unpredictable in application. Some depend on determinations of the subjective state of mind of technology providers, and many require courts to decide the issue of secondary liability based on a frozen "snapshot" of a rapidly evolving technological and commercial environment.
Under many of these standards, changes in the market (such as an unanticipated shift from lawful to unlawful activities on the part of users) could negate the value of substantial prior investments. They would impose disproportionate burdens on technology providers, making them (in effect) guarantors of their customers overall good behavior, both in the present and the future.
Moreover, these standards are wholly untested in their potential application to providers of innovative information technology.
Conclusion
By enabling the development and distribution of successive "technologies of freedom," the principle embodied in this Court's Sony decision has helped to generate enormous public benefits while assuring fair and reasonable compensation to copyright owners. Modifying the Sony principle would provide copyright owners with a roving commission to censor new information technology. This Court should not vest control over information technology in the modern-day equivalent of the Stationer's Company. In the short-term, the benefits of such a departure would accrue exclusively to the copyright industries, and the costs to the public. In the longer term, all would share in the resulting cultural, economic and social losses.
Peter Jaszi
Attorney for Amici Curiae
Glushko-Samuelson Intellectual Property Law Clinic
Washington College of Law
American University
