My cow-orker Ren Bucholz has done a magnificent and pithy analysis of the parallels between the 1983 Supreme Court arguments in Betamax, in which the studios argued that the VCR should be criminalized, and last week's arguments in the 9th Circuit Appeals Court in Grokster, in which the recording industry argued the same thing about P2P file-sharing networks:
Later in last week's argument, Judge Thomas took Frackman's argument
(knowledge – ability = contributory infringement) to its logical
conclusion by asking whether he thought Xerox should be held liable
when a UCLA student uses a photocopier to make infringing copies.
Here's what happened to Kroft in '83:Justice Stevens: Under your test, supposing
somebody tells the Xerox people that there are people making illegal
copies with their machine, and they know it. What are they supposed to
do? … Your view of the law is that as long as Xerox knows that there
is some illegal copying going on, Xerox is a contributory infringer?Kroft: To be consistent, your honor, I'd have to say yes.
Justice Stevens: A rather extreme position.
