Thanks to Wendy Seltzer, I was able to listen to an MP3 of the MGM v. Grokster argument, (CIS is a co-counsel to Grokster). I would have loved to go in person, but I was watching a Cyberlaw Clinic student argue one of our Doe cases ampex vs. exampex.
First, a moment to reflect on technology that allows one to download and listen to an oral argument the day after it occurred-- amazing. Especially when the case is about the future of technology to exchange these sound bytes easily.
Onto the argument. EFF's Fred von Lohmann, who argued on behalf of Streamcast, distributor of the Morpheus software, was great. He brought up the argument that when the Xerox machine first came out, the AAP wanted to sue them out of business. That suing is the content industry's MO, each time a new technology is developed that may challenge their monopoly on content distribution.
Later, when the industry’s lawyer was arguing in rebuttal, one of the judges asked the key question:
If Xerox found out that UCLA students were rampantly copying Judge Noonan’s book, would they be liable if they did not stop selling copiers to UCLA? Isn’t that would be required under your interpretation of the Sony Betamax case?
The lawyer responded:
No. First, Xerox is not materially liable because they sell the product and then are out of any further transaction such that they’re not contributory liable (no explanation how this differs from Grokster) and second, Sony requires balance, and since Xerox could not track infringers, the balance fell against finding infringement.
The Judge disagreed:
Isn’t the proper analogy to blocking, that Xerox would be required not to sell.
If the judges follow this line of reasoning—looks like we may have a winner!