Lessig: Supreme Court copyright ruling invites chaos

Grokster v MGM means two bites of the apple for litigators, he says

The 2005 decision by the Supreme Court in the Grokster v. MGM case is partly responsible for Viacom Inc.'s dispute with Google Inc. ending up in court, copyright-law expert Lawrence Lessig said in a Sunday opinion piece in the New York Times.

Viacom last week sued Google for $1 billion in damages from the unauthorized posting of Viacom videos on Google's free YouTube video-sharing Web site. In a complaint filed with the U.S. District Court for the Southern District of New York, Viacom charged YouTube with profiting from "massive intentional" violations of Viacom's copyrighted material.

"YouTube is a significant, for-profit organization that has built a lucrative business out of exploiting the devotion of fans to others' creative works in order to enrich itself and its corporate parent Google," Viacom said.

Prior to the Supreme Court's 2005 Grokster ruling (PDF format), which found Grokster Ltd. and StreamCast Networks Inc. liable for copyright infringements committed by users of their peer-to-peer file-sharing software, the court held that Congress was responsible for defining copyright policy, wrote Stanford University law professor Lawrence Lessig in the opinion piece.

Lessig has been a vocal critic of copyright laws and led the creation of the Creative Commons licensing program.

"Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright -- the wrong of providing technology that induces copyright infringement," Lessig wrote, noting that the decision came even as Congress was debating whether to include such a provision in the law.

"The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts," Lessig wrote.

For Viacom's suit against Google to be successful, the company must persuade the court that YouTube is responsible for monitoring that content it offers does not violate copyright. However, the 1998 Digital Millennium Copyright Act's safe harbor provision states that a service provider does not need to monitor content to determine whether copyrights are being violated, Lessig wrote.

"Congress, of course, is perfectly capable of changing or removing the safe harbor provision to meet Viacom's liking. But Viacom recognizes there's no political support for the change it wants. It thus turns to a policy maker that doesn't need political support -- the Supreme Court," Lessig wrote.

Copyright © 2007 IDG Communications, Inc.

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