October 8, 2004 | By Fred von Lohmann

Big Media Attacks Betamax in Court

The entertainment industry today filed its petition for certiorari asking the Supreme Court to overturn the Ninth Circuit's ruling in MGM v. Grokster.

The brief makes two things clear.

First, the entertainment industry is plainly mounting a frontal attack on the Betamax doctrine, seeking a radical rewrite of secondary liability principles.

Often described as the Magna Carta of the technology industry, the Betamax doctrine makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are "merely capable of substantial noninfringing uses." In today's petition, the entertainment industry urges the Court to reverse that established rule and impose on innovators a "legal duty either to have designed their services differently to prevent infringing uses, or to take reasonable steps going forward to do so." Of course, on that view, Sony's Betamax VCR would never have seen the light of day, since Sony could have designed it differently (in fact, the movie studios suggested back in 1978 that Sony implement a "broadcast flag" system!) or modified it after Disney complained.

Second, the entertainment industry appears to think that it can treat the Supreme Court and Congress interchangeably in pushing for its preferred rewrite of copyright law.

Having just been rebuffed by the Senate Judiciary Committee on the Induce Act, the entertainment oligopolists now demand that the Supreme Court rewrite the Copyright Act for them. The entertainment industry lawyers think this case is about how "principles of secondary liability apply to the unprecedented phenomenon of Internet services."

They are wrong. The relevant question is who decides what those principles should be.

And the answer to that question is clear and uncontroversial -- it's Congress that writes the Copyright Act, not the courts. In fact, Senator Hatch has promised to wrestle with the issue next year (of course, we have our own ideas about what Congress should do about P2P). That is why the Supreme Court should not, and will not, take this case.


Deeplinks Topics

Stay in Touch

NSA Spying

EFF is leading the fight against the NSA's illegal mass surveillance program. Learn more about what the program is, how it works, and what you can do.

Follow EFF

Some lawmakers want to undo crucial online privacy rules. Tell your members of Congress to defend your rights. https://act.eff.org/action/te...

Feb 21 @ 3:25pm

The movement to encrypt the web has reached a milestone, and we still have more work to do. https://www.eff.org/deeplinks...

Feb 21 @ 2:53pm

The M2 car hacking tool by @macchinaCC launches today. T-shirts help benefit EFF's fight for your right to repair. https://www.kickstarter.com/p...

Feb 21 @ 12:48pm
JavaScript license information