|Click here to read the amicus brief filed with the Supreme Court (pdf)|
The implications for copyright owners -- including songwriters and music publishers -- are serious. In essence, Grokster's software helps make available thousands of songs in a variety of genres -- without authorization from, or payment to, the owners and creators of those songs. Similar to the original Napster, the activities of Grokster and comparable services could mean the loss of millions of dollars to copyright owners.
In a previous case, Napster, which the U.S. Court of Appeals for the Ninth Circuit found to be liable, operated a centralized database that listed works available for download and through which requests for copies were routed. In contrast, the decentralized services' software (such as that used by Grokster) enabled each user to search other users' computers directly.
Notwithstanding the fact that 90% of the traffic on the peer-to-peer network involved copyrighted works and even though it was undisputed that these transmissions were unauthorized and constituted infringement, the Ninth Circuit Court of Appeals held that Grokster's software was capable of "substantial" or "commercially significant" non-infringing uses. The court also held that, in order to be held liable, Grokster had to have specific knowledge of infringements at the time they contributed to the infringements and that it had failed to act on that information.
The appeals court's decision was based in part on the Sony-Betamax case of 1984, where the Supreme Court ruled that the Betamax videotape recorder was a staple article of commerce that was capable of substantial non-infringing uses. The Court held that non-commercial copying of broadcast television programs for purposes of "time-shifting" viewing was a fair use that many program owners condoned and that did not have an adverse impact on the advertising revenues of the broadcasters in the marketplace.
However, that case did not take into account a future digital world where perfect copies - indistinguishable from the originals -- could be made on an unauthorized basis, as is the case with Grokster and its ilk.
In addition to the obvious threat to the livelihood of songwriters, music publishers, and other creators, there is a pervasive theory that such unauthorized activity, if unchecked, would have a dampening effect on future creators: basically, if young creators realize they will not receive fair compensation for their musical works, they will seek other outlets for their creative energies.
BMI joined with others and filed an amicus brief on behalf of songwriters and music publishers urging the court to hold Grokster liable for the massive infringements that occur daily on this peer-to-peer server.