<b>Commentary</b>Issues To Consider In Supreme Court's <i>Grokster</i> Review

Critical questions for the Supreme Court are likely to be the amount of non-infringing activity required for a contributory or vicarious infringer to escape liability for use of its product, and perhaps the intent of the defendant in developing and marketing its product.

The Ninth Circuit relied heavily on the previous U.S. Supreme Court decision in Sony Corp. of America v. Universal City Studios Inc., 464 U.S. 417 (1984). In that case, the Supreme Court held that Sony couldn't be liable for any infringement that might be done using its then-new technology of the Betamax video recorder. In reaching its decision, the Supreme Court ruled that a manufacturer of a device couldn't be liable for copyright infringement if the device has “commercially significant noninfringing uses.” 464 U.S. at 442. Justice John Paul Stevens' 5-4 majority opinion then noted, “[We] need not give precise content to the question of how much use is commercially significant … [because] … private, noncommercial time shifting in the home” plainly satisfied the standard. Indeed, almost 75 percent of Betamax owners used their VCRs mainly for time shifting. Ninety-six percent used it to record a program they world otherwise miss. Time shifting was a fair use in the court's analysis because it was non-commercial, and the movie and television producer plaintiffs had no actual evidence of what harm the video recorder might to do the market value of their copyrights.