UC Berkeley

On March 1, 2005, the Samuelson Clinic filed a brief amicus curiae in the U.S. Supreme Court in MGM v. Grokster on behalf of 60 law professors and the U.S. Public Policy Committee of the Association for Computing Machinery. USACM is the world's oldest and largest international scientific and educational organization composed of 78,000 computing professionals dedicated to advancing the arts, sciences, and applications of information technology.

The brief argues that this case is fundamentally about technology policy, not about file sharing or copyright infringement. Each of the alternative secondary liability standards for which the petitioners and others argue would dramatically change the balance of power between the entertainment and the technology industries (despite the absence of a statutory basis in copyright law for this change), and would disrupt settled expectations in the information technology industry. For more than 20 years, both the technology and entertainment industries have experienced unprecedented technological innovation and economic prosperity under the fundamental framework created by the Sony rule that developers are not secondarily liable when the technologies they create are capable of substantial non-infringing uses. The alternative tests for secondary liability proposed by the petitioners and various amici would upset settled expectations and mire the courts in subjective reviews of new technologies—a recipe for instability and confusion that would severely impair innovation and technological development.

The brief further argues that the Sony rule has prevented the very confusion and instability in copyright that, in the patent context, led to Congress's enactment of the staple article of commerce rule. Prior to the enactment of 35 U.S.C. § 271, secondary liability in patent law was decided on a case-by-case basis, and various courts imposed different liability standards, creating instability and uncertainty in patent law. Section 271 was added to the patent statute to clarify and stabilize secondary liability rules, and it has been largely successful in doing so—just as Sony has been in the copyright context. Finally, the brief argues that only Congress has the institutional competence to craft rules that address new technological developments such as the peer-to-peer file-sharing phenomenon.