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.


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