, et al. petitioners, et al. respondents

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No. 04-480 I N T HE Supreme Court of the United States METRO-GOLDWYN-MAYER S TUDIOS ,I NC., et al., Petitioners, v. GROKSTER ,LTD., et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief Amici Curiae of the Free Software Foundation and New Yorkers for Fair Use in Support of Respondents E BEN MOGLEN Counsel of record 435 West 116th Street New York, NY 10027 (212) 854-8382 Counsel for Amici Curiae

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Page 1: , et al. Petitioners, et al. Respondents

No. 04-480

IN THE

Supreme Court of the United States

METRO-GOLDWYN-MAYER STUDIOS, INC.,et al.,

Petitioners,

v.

GROKSTER, LTD., et al.,Respondents.

On Writ of Certiorari to the United StatesCourt of Appeals for the

Ninth Circuit

Brief Amici Curiae of theFree Software Foundation and New Yorkers

for Fair Usein Support of Respondents

EBEN MOGLENCounsel of record

435 West 116th StreetNew York, NY 10027(212) 854-8382Counsel for Amici Curiae

Page 2: , et al. Petitioners, et al. Respondents

QUESTION PRESENTED

1. Did the Court of Appeals rightly conclude that thedoctrine of contributory copyright infringement can-not be used to prohibit the Internet?

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TABLE OF CONTENTS

I. This Court Should Reject Petitioners’ Overreach-ing Claim to Control the Design of the Internetthrough Secondary Copyright Liability 5

A. Petitioners Are Actually Claiming Power toDefine the Technical Design of the Internet . 5

B. The Internet is Developing in a DirectionContrary to Petitioners’ View of their Busi-ness Interests . . . . . . . . . . . . . . . . . . . 7

C. The Copyright Act and Associated Doc-trines of Secondary Liability Do Not Em-power One Small Industry to Balance ForEveryone Else the Social Interests Affectedby Widespread Changes in DistributionTechnology . . . . . . . . . . . . . . . . . . . . 12

II. Decisions Concerning Fundamental Matters ofCopyright Policy, Particularly in Relation to NewCommunications Technologies, Should Be MadeInitially by Congress 15

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TABLE OF AUTHORITIES

Cases

Eldred v. Ashcroft, 537 U.S. 186 (2003) . . . . . . . . . . . . . . . . . 13Fogerty v. Fantasy, Inc.,

510 U.S. 517 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Feist Publications, Inc. v. Rural

Telephone Service Co., 499 U.S. 340 (1991) . . . . . . . . . . . 13Sony Corp. v. Universal City Studios, Inc.,

464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . . . . . .6, 7, 12, 15, 16Twentieth Century Music Corp. v. Aiken,

422 U.S. 151 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Fortnightly Corp. v. United Artists Television,

Inc., 392 U.S. 390 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15Buck v. Jewell La Salle Realty Co.,

283 U.S. 191 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14White-Smith Music Publishing Co. v.

Apollo Co., 209 U.S. 1 (1908) . . . . . . . . . . . . . . . . . . . . . . 3, 14Bobbs-Merrill Co. v. Straus,

210 U.S. 339, 351 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Metro-Goldwyn-Mayer Studios, Inc. v. Grokster

Ltd., 380 F.3d 1154 (CA9 2004) . . . . . . . . . . . . . . . . . . . . . . 13

Constitutions, Statutes, and Regulations

Copyright Act of 1976, Pub. L. No. 94-553,90 Stat. 2541 (codified as amended at 17 U.S.C.§§ 101–810 (2000)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Audio Home Recording Act of 1992 (AHRA),Pub. L. No. 102-563, 106 Stat. 4237 (codifiedat 17 U.S.C. § 1001 et seq. (2000)) . . . . . . . . . . . . . . . . . . . . . 15

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Other Materials

MPAA Br. Amicus Curiae in Support ofResp. in Eldred v. Ashcroft, No. 01-618 (2002) . . . . . 3, 16

Nelson Minar and Marc Hedlund, A Network ofPeers: Peer-to-Peer Models Throughoutthe History of the Internet, in Peer to Peer:Harnessing the Benefits of a DisruptiveTechnology (Andy Oram ed., 2001) . . . . . . . . . . . . . . . . . . . 7

Kelly Truelove et al., 2001 P2P NetworkingOverview: The Emergent P2P Platform ofPresence, Identity, and EdgeResources (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

David Cohen, New P2P network fundedby US government, New Scientist,Oct. 1, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Andy Dornan, BitTorrent Jibes With Caching,Network Magazine, February 1, 2005 . . . . . . . . . . . . . . . 11

Robert Godwin-Jones, Emerging technologies:messaging, gaming, peer-to-peer sharing:language learning strategies & toolsfor the millennial generation, Language,Learning & Technology, Jan. 1, 2005. . . . . . . . . . . . . . . . . 12

John Philip Sousa, The Menace of Mechanical Music8 Appleton’s Magazine 278 (1906) . . . . . . . . . . . . . . . . . . . 14

Blog Torrent at http://www.blogtorrent.com/ . . . . . . . . 12

Press Release, CacheLogic Announces NewInternet Analysis Platform, Provides ExclusiveData on Worldwide P2P Usage, July 15, 2004 . . . . . . . . 10

Chomsky Torrents athttp://www.chomskytorrents.org/ . . . . . . . . . . . . . . . . . 12

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Press Release, Matt Haughey, Creative CommonsApplauds the Release of Political FilmFootage on Peer-to-Peer (Sep. 15, 2004) . . . . . . . . . . . . . . 11

Independent Media Center athttp://www.indymedia.org . . . . . . . . . . . . . . . . . . . . . . . . 12

Thomas Karagiannis et al., Is P2P dyingor just hiding?, December 2004 . . . . . . . . . . . . . . . . . . . . . . 10

IRIS: Infrastructure for Resilient Internet Systems,at http://iris.lcs.mit.edu/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

MIT has share in project for a more secureInternet, Sep. 25, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

My5Minutes at http://www.my5minutes.com/ . . . . . . . 11

Open Bits at http://www.open-bits.org/ . . . . . . . . . . . . . . 11

Outraged Moderates: Government Document Archiveat http://www.outragedmoderates.org/GovernmentDocumentLibrary.html (2004) . . . . . . . . . . 11

P2P Research Report Strips the Hypefrom Peer-to-Peer (Nov. 7, 2001) . . . . . . . . . . . . . . . . . . . . . . 8

Marc Rapport, Microsoft, IBM DevelopP2P Technology, PeerToPeerCentral.com,Feb. 12, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Clay Shirky, What’s P2P and What’sNot (Nov. 24, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The Linux Mirror Projectat http://www.tlm-project.org/ . . . . . . . . . . . . . . . . . . . . 11

Torrentocracy athttp://torrentocracy.com/torrents/ . . . . . . . . . . . . . . . . 12

Waxy at http://www.waxy.org/bt/ . . . . . . . . . . . . . . . . . . . 11

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No. 04-480

IN THESupreme Court of the United States

METRO-GOLDWYN-MAYER STUDIOS, INC.,et al.,

Petitioners,v.

GROKSTER, LTD., et al.,Respondents.

On Writ of Certiorari to the United StatesCourt of Appeals for the

Ninth Circuit

Brief Amici Curiae of theFree Software Foundation and New Yorkers for Fair Use

in Support of Respondents

INTEREST OF Amici Curiae

This brief is filed on behalf of the Free Software Foun-dation, a charitable corporation with its main offices inBoston, Massachusetts.1 The Foundation believes thatpeople should be free to study, share and improve all thesoftware they use, as they are free to share and improveall the recipes they cook with, and that this right is an es-

1Counsel for both parties have consented to the filing of this brief,and those consents have been filed with the Clerk of this Court. Nocounsel for either party had any role in authoring this brief, and noperson other than the amici and their counsel made any monetary con-tribution to its preparation and submission.

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sential aspect of the system of free expression in a tech-nological society. The Foundation has been working toachieve this goal since 1985 by directly developing anddistributing, and by helping others to develop and dis-tribute, software that is licensed on terms that permit allusers to copy, modify and redistribute the works, so longas they give others the same freedoms to use, modify andredistribute in turn. The Foundation is the largest singlecontributor to the GNU operating system (used widely to-day in its GNU/Linux variant for computers from PCs tosupercomputer clusters). The Foundation’s GNU GeneralPublic License is the most widely used “free software” li-cense, covering major components of the GNU operatingsystem and tens of thousands of other computer programsused on tens of millions of computers around the world.The Foundation is strongly interested in the use and de-velopment of copyright law to encourage sharing, and toprotect the rights of users and the public domain.

This brief is also filed on behalf of New Yorkers for FairUse, a non-profit advocacy organization incorporated inNew York. New Yorkers for Fair Use defends the rightof private ownership of computers, and the rights of freespeech and free association, especially in new forms madepossible by the Internet. We defend the interests of all cit-izens who benefit from flexible and innovative use of dig-ital technology, the communications infrastructure, andpublished information. Some members of New Yorkersfor Fair Use earn their livings by writing, using, and dis-tributing software. Should the laws be changed so that wemust consider whether we will be sued for writing, using,or distributing software which facilitates indexing, presen-tation of indices and catalogues, and transmission of bitsacross the Internet, our livelihoods would be at risk.

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SUMMARY OF ARGUMENT

Contrary to petitioners’ self-serving announcement, thisis not “one of the most important copyright cases ever toreach this Court.” Pet. for Cert. at 1. The Court belowquite properly rejected petitioners’ novel and untenableclaim that the doctrine of contributory copyright infringe-ment affords a few copyright-related businesses power todefine the technical structure of the Internet.

Just a few short terms ago, the movie industry wasproclaiming the plenary extent of Congressional powerto make the policy choices—balancing the interests ofauthors, publishers and users—that constitute copyrightdoctrine. See MPAA Br. Amicus Curiae in Support ofResp. in Eldred v. Ashcroft, No. 01-618, at 3. Howsoon they forget. This year the industry’s new position isthat the largest issues of copyright policy, concerning newtechnologies of distribution, are appropriately dealt withnot by Congress, but through judicial development of sec-ondary liability doctrine.

Contrary to a clear line of cases extending back to the de-cision in White-Smith Music Publishing Co. v. Apollo Co., 209U.S. 1 (1908), petitioners continue to argue in this Courtthat manufacturers and providers of new technologies ofdistribution are secondarily liable for infringing uses ofthat technology of which they are unaware and over whichthey have no control. Petitioners go farther, and argue thateven widespread, substantial non-infringing uses of thenew technology do not insulate its manufacturers from li-ability for others’ acts. All of this is law that petitionersmade up: they have no statutory bases for their claims,and are arguing here, as they argued below, that theydon’t need any. As though this degree of overreachingwere insufficient evidence of their mettle, petitioners go on

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to identify as the technical features of respondents’ com-puter networking software that establish their entitlementto relief those features that are shared by the whole recentgeneration of Internet protocols, embodying the future ofnetwork design. In the teeth of this Court’s clear state-ments extending back almost a century, without the slight-est statutory justification, petitioners claimed below thatthey had a right to veto the technological design that or-ganizes the majority of contemporary traffic on the globalInternet. Not surprisingly, they lost, and now resume theirblustering before this Court. In referring to this as a veryimportant case, petitioners characteristically mistake self-importance for the real thing.

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ARGUMENT

I. This Court Should Reject Petitioners’ OverreachingClaim to Control the Design of the Internet throughSecondary Copyright Liability

A. PETITIONERS ARE ACTUALLY CLAIMING POWER TODEFINE THE TECHNICAL DESIGN OF THE INTERNET

At the heart of Petitioners’ argument is an arrogantand unreasonable claim—even if made to the legislatureempowered to determine such a general issue of socialpolicy—that the Internet must be designed for the conve-nience of their business model, and to the extent that itsdesign reflects other concerns, the Internet should be ille-gal. In petitioners’ own words, “Grokster’s and Stream-Cast’s services are designed so that users can easily andanonymously connect with like-minded [users],” which“breed[s] a culture of contempt for intellectual property,and for the rights of others generally, in cyberspace.” Pet.Br. at 4, 13. Specifically, petitioners claim that respon-dents’ technological choices involve decentralized index-ing, id. at 9, lack of access controls (in contrast to a sup-posed “common practice” for internet services), id. at 10,absence of binding license agreements, id. at 11, and fail-ure to implement centralized filtering, ibid, and that thesetechnical choices in network architecture are demonstra-tive of respondents’ complicity in “erod[ing] ... the veryfoundations of copyright law in the digital age.” Id. at 14.

Petitioners’ view of what constitutes the foundationof copyright law in the digital age is as notable for itscarefully-assumed air of technical naivete as for the au-dacity with which it identifies their financial interest withthe purpose of the entire legal regime. The combinationof technical features which, as petitioners know full well,

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distinguishes most current innovations in the employmentof computer networks throughout all facets of social life,is, according to petitioners, an aspect of the supposed “in-ducement” to direct infringement that petitioners claimdistinguishes this case from Sony Corp. v. Universal CityStudios, Inc., 464 U.S. 417 (1984). Pet. Br. at 27–29. Pe-titioners’ whole theory comes to this: When the abilityto “separate” infringing from non-infringing communica-tions is within the realm of technological possibility, evenif only through one possible network design, a central-ized server-client architecture, that route must be chosen.Failure to adopt that technical architecture by softwaredesigners creating network protocols and applications es-tablishes secondary liability for later acts of infringementof which the technical designers were unaware and overwhich they had no control. Id. at 32–33. Petitioners con-tend that their preferred model of computer networkingtechnology is the only possibility that properly “strike[s] abalance between a copyright holder’s legitimate demandfor effective ... protection” and “the rights of others freelyto engage in substantially unrelated areas of commerce.”Id. at 17, (quoting Sony, 464 U.S., at 442). They claimthat, without the slightest legislative authorization, fed-eral courts should proceed to fasten this restrictive viewof acceptable technical design upon the global Internet, re-gardless of the myriad and commercially-significant usesof non-hierarchical peer-to-peer technology, as though thisCourt’s decision in Sony had provided no guidance to thecontrary.

To be sure, petitioners attempt to obscure the extent towhich they would recast and expand this Court’s estab-lished approach to secondary copyright liability, by focus-ing on what they claim is respondents’ “specific intent ofinducing infringement.” Pet. Br. at 26. But this is merelyobfuscatory. Petitioners proclaim that “creation and oper-

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ation of the services constitutes material contribution un-der settled law, and standing alone justifies liability” oncetheir theory of Sony, rejected by the Court below, is con-ceded. Id. at 25. But “creation and operation of the ser-vices,” despite petitioners’ pretense of technological igno-rance, means “participating in the peer-to-peer redesignof the Internet.” Petitioners are claiming that the directionof contemporary technology is in itself “material contribu-tion to copyright infringement.”

B. THE INTERNET IS DEVELOPING IN A DIRECTIONCONTRARY TO PETITIONERS’ VIEW OF THEIR BUSI-NESS INTERESTS

The digital network currently transforming society isa technology conceived out of a single, specific need:to share data among independently-operating computers.Early work on the architecture for what would eventuallybecome the Internet envisioned a decentralized, denselyinterconnected network of machines exchanging data witheach other as peers, thereby creating a system that wouldrecover gracefully from the failure of individual machinesand would efficiently use the resources of the entire ma-chine ecology: bandwidth, CPU cycles, and storage space.See Nelson Minar and Marc Hedlund, A Network of Peers:Peer-to-Peer Models Throughout the History of the Internet, inPEER TO PEER: HARNESSING THE BENEFITS OF A DIS-RUPTIVE TECHNOLOGY 3-15 (Andy Oram ed., 2001). Asthe Internet began to see widespread use, the architecturetook an unexpected turn away from its initial design in re-sponse to the technical and economic realities of its institu-tional users. Storage space and network bandwidth weretoo expensive for casual employment. Specific, limitedapplications, embodying a “client-server” model emergedwherein expensive machines with large disks were outfit-

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ted with fast network connections in order to serve datato multiple end-user desktop machines, each of which fea-tured limited storage and was connected to the network bya slow connection. Thus, relatively few institutions cameto be the gatekeepers of data distribution on the Internetby way of their fast, expensive data servers pumping dataonto the network.

The past decade has seen tremendous changes in theeconomics and technology of personal computing and net-working. High-bandwidth network connections are nowwithin the budget of individuals for their personal use,and storage space has become cheap enough that usersrarely have to budget it at all. Accordingly, network dy-namics have begun once again to reflect the initial de-sign of the Internet: each connected machine now hasthe surplus resources to store and serve large amounts ofdata to peer machines on the network, and the mediatingpresence of a high-bandwidth server is no longer neces-sary. These direct peer-to-peer data exchanges make ef-ficient use of all the resources available on the network,mobilizing unused bandwidth and storage space on mil-lions of desktop machines to facilitate applications on thescale of the entire Internet. See Press Release, O’Reilly Me-dia, P2P Research Report Strips the Hype from Peer-to-Peer (Nov. 7, 2001), available at http://www.oreilly.com/www/oreilly/press/p2presearch.html (Nov. 7, 2001);see also Clay Shirky, What’s P2P and What’s Not, avail-able at http://www.openp2p.com/pub/a/p2p/2000/11/24/shirky1-whatisp2p.html (Nov. 24, 2000). Peer-to-peerdata management “has potential benefits in bandwidthsharing (e.g. distributed content streaming), load bal-ancing, fail-over redundancy, collaborative content cre-ation and maintenance, and more.” KELLY TRUELOVE ETAL., 2001 P2P NETWORKING OVERVIEW: THE EMERGENTP2P PLATFORM OF PRESENCE, IDENTITY, AND EDGE RE-

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SOURCES (2001). And these benefits have not gone unno-ticed by the technical and academic communities. Com-puter scientists at MIT and Berkeley developing a next-generation computer network that may supplant the cur-rent Internet have recognized the strengths of peer-to-peerdata networks; their National Science Foundation-fundedproject, IRIS, employs a peer-to-peer framework to ensuresecurity, reliability, and efficiency.2 The digital technologyindustry has also realized the benefits of peer-to-peer filesharing as a means of efficiently distributing and storinglarge amounts of data: Both Microsoft and IBM have ex-tensive technology projects focused on this area.3

According to petitioners, however, the entire process ofreplacing “centralized filtering” and “controlled access”with “decentralized indexing” and peer-to-peer sharing isnothing more or less than “material assistance to infringe-ment.” Yet these aspects of respondents’ services reflectthe new realities of the Net as a whole. The World WideWeb is largely a domain of uncontrolled access and de-centralized indexing. Respondent Grokster’s use of thefree software gnutella protocol is but one implementationamong many of the new technical possibilities opened upby the maturation of the Internet.

Petitioners’ argument, quite properly rejected by theCourt of Appeals, would actually apply to the majority ofthe Net as it exists today. Peer-to-peer systems have begun

2See David Cohen, New P2P network funded by US government, NEWSCIENTIST, Oct. 1, 2002, available at http://www.newscientist.com/article.ns?id=dn2861; see also Press Release, Massachusetts Institute ofTechnology, MIT has share in project for a more secure Internet (Sep.25, 2002), available at http://web.mit.edu/newsoffice/2002/connect.html; IRIS: Infrastructure for Resilient Internet Systems, at http://iris.lcs.mit.edu/.

3See Marc Rapport, Microsoft, IBM Develop P2P Technology, PEER-TOPEERCENTRAL.COM, Feb. 12, 2001, available at http://www.imakenews.com/p2pcentral/e article000015110.cfm.

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to supplant the traditional client-server model in terms ofactual volume of traffic over the Internet. CacheLogic, afirm that develops tools for network traffic analysis for In-ternet service providers, and CAIDA, a cooperative groupthat develops Internet traffic metrics, both recently pub-lished studies attributing 60% to 70% of all Internet trafficto peer-to-peer data exchange, with the popular applica-tion Bit Torrent accounting for 53% of all peer-to-peer traf-fic.4 Bit Torrent is a peer-to-peer application designed tospeed up and decentralize the distribution of large datafiles. It works by breaking the file into small pieces, thenexploiting the upload capacity of each individual user toserve pieces of the file to other users while the originaluser is downloading the rest of the file from elsewhere.The list of users serving and downloading a given file is“tracked” on a website, where new users can go to beginthe download/file-serving process in collaboration withthe other participants.

This “bucket-brigade” communal approach to distribu-tion does more than achieve efficient use of network tech-nical resources. As well as being used for a good dealof infringing activity sharing, among other things, copy-righted movies and television programs produced by pe-titioners, Bit Torrent has found widespread use by numer-ous groups seeking to distribute large files on the Internetfor commercial and non-commercial non-infringing pur-poses. The free software community has embraced Bit Tor-rent as an efficient method of distributing software instal-lation CD images for non-proprietary operating systems

4See Press Release, CacheLogic Announces New Internet AnalysisPlatform, Provides Exclusive Data on Worldwide P2P Usage (July 15,2004), available at http://www.cachelogic.com/news/pr040715.php;see also Thomas Karagiannis et al., Is P2P dying or just hiding?, Decem-ber 2004, available at http://www.caida.org/outreach/papers/2004/p2p-dying/p2p-dying.pdf (presented at Globecom 2004).

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like GNU/Linux and for other free software applicationsthat are licensed on terms that permit free copying, mod-ification and redistribution.5 BitTorrent provides a meansfor these groups, which are often funded out of the pock-ets of unpaid individual users and developers, to spreadthe costs of distributing the files among the community,to match demand with supply via BitTorrent’s automaticmatching of popularity with availability, and to preventthe possibility of a single server crash making a given re-source unavailable.6

Various coalitions of independent filmmakers have, forsimilar reasons, adopted Bit Torrent as a tool for distribut-ing their non-copyrighted or freely-licensed content.7 Inmany cases, the films and footage would not otherwisehave been available to the public due to the high costsof hosting a video content server.8 Similarly, many inde-pendent journalists have taken to posting their video feedsand political documentary footage on Bit Torrent sites likeTorrentocracy, which host various political documents ofpublic interest that might not otherwise find a viable chan-nel of distribution.9 Educators have also made use of Bit

5See The Linux Mirror Project at http://www.tlm-project.org/; seealso Open Bits at http://www.open-bits.org/.

6See Andy Dornan, BitTorrent Jibes With Caching, NETWORK MAG-AZINE, February 1, 2005, available at http://www.networkmagazine.com/shared/article/showArticle.jhtml?articleId=57701944.

7See My5Minutes at http://www.my5minutes.com/; see also Waxyat http://www.waxy.org/bt/.

8Being an oligopoly, petitioners are understandably shy about in-dicating in their presentation to this Court that the technology they areseeking to eliminate as contributing to infringement lowers the mostimportant barrier to entry faced by their competitors.

9See Press Release, Matt Haughey, Creative Commons Applaudsthe Release of Political Film Footage on Peer-to-Peer (Sep. 15, 2004),available at http://creativecommons.org/press-releases/entry/4401;see also Outraged Moderates: Government Document Archive at http://www.outragedmoderates.org/GovernmentDocumentLibrary.html

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Torrent to share multimedia language-learning resourceswith each other.10

C. THE COPYRIGHT ACT AND ASSOCIATED DOCTRINESOF SECONDARY LIABILITY DO NOT EMPOWER ONESMALL INDUSTRY TO BALANCE FOR EVERYONE ELSETHE SOCIAL INTERESTS AFFECTED BY WIDESPREADCHANGES IN DISTRIBUTION TECHNOLOGY

Petitioners advocate a reinterpretation of this Court’s es-tablished secondary copyright infringement doctrine thatwould allow copyright holders to reach and restrain theimplementation of core technologies of copying and distri-bution under the guise of protecting their statutory rights.As the Court is well aware, “a finding of contributory in-fringement [here is] the functional equivalent of holdingthat the disputed article is within the monopoly grantedto the patentee.” Sony, 464 U.S., at 441. Applied as peti-tioners would have it applied, contributory infringementdoctrine would work an unprecedented and unwarrantedextension of their monopolies.

The exclusive rights granted to authors under 17 U.S.C.§ 106 are severely limited by both statute and the Constitu-tion. As this Court has repeatedly observed, the “limitedscope of the copyright holder’s statutory monopoly ... re-flects a balance of competing claims upon the public inter-est. ... But the ultimate aim [of copyright] is ... the general

(2004); Chomsky Torrents at http://www.chomskytorrents.org/ (non-copyright-protected video and audio of Noam Chomsky’s lecturesand interviews); Torrentocracy at http://torrentocracy.com/torrents/;Blog Torrent at http://www.blogtorrent.com/; Independent MediaCenter at http://www.indymedia.org.

10See Robert Godwin-Jones, Emerging technologies: messaging, gam-ing, peer-to-peer sharing: language learning strategies & tools for the mil-lennial generation, LANGUAGE, LEARNING & TECHNOLOGY, January1, 2005.

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public good.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 526–27(1994) (quoting Twentieth Century Music Corp. v. Aiken, 422U.S. 151, 156 (1975)). This Court has consistently held thatcopyright holders do not have unlimited power to controlall or even most uses and distributions of their works. Ex-tension of control beyond the limits set by the distinctionbetween expressions and ideas, and the principle of fairuse, is constitutionally prohibited, as this Court has repeat-edly taught. See Eldred v. Ashcroft, 537 U.S. 186, 190 (2003);Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S.340, 349–50 (1991).

Where the Constitution sets no limit on the scope ofthe monopoly to be granted, it empowers Congress tomake the basic policy decisions that the grant of a statu-tory monopoly inherently involves. This Court has rightly,throughout the history of the Republic, preserved the com-mon law’s tradition of skepticism about statutory monop-olies, and has wisely engaged in strict construction of thelegislature’s grant. So with respect to technologies of redis-tribution, for example, this Court has unfailingly held thatcopyright owners’ ability to dictate how specific copies ofworks are distributed is stringently curtailed by the firstsale doctrine. As Justice Day noted nearly one hundredyears ago, “[t]o add to the right of exclusive sale the au-thority to control all future retail sales ... would give aright not included in the terms of the [copyright] statute.”Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 351 (1908).

Despite petitioners’ apocalyptic rhetoric, this case fol-lows a familiar pattern in the history of copyright: in-cumbent rights-holders have often objected to new tech-nologies of distribution that force innovation on the un-derstandably reluctant monopolist. As the Court of Ap-peals recognized, see Metro-Goldwyn-Mayer Studios, Inc. v.Grokster Ltd., 380 F.3d 1154, 1158, 1166 (CA9 2004), there isno precedent in any of these cases for holding the manu-

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facturer of new technology or distribution equipment sec-ondarily liable for copyright infringement.

In White-Smith Music Publishing Co. v. Apollo Co., 209 U.S.1 (1908), this Court held that the manufacturer of playerpianos and perforated rolls, which together played copy-righted musical compositions, did not infringe copyright.In characterizing the player piano and perforated rolls,this Court quoted approvingly from a First Circuit deci-sion that had noted that “[the rolls] are a mechanical in-vention made for the sole purpose of performing tunesmechanically upon a musical instrument.” White-Smith,209 U.S., at 12. In subsequently holding that such a “me-chanical invention” did not fall within the ambit of copy-right law, this Court was mindful that questions concern-ing mediation between core technologies and copyright“properly address themselves to the legislative, and notto the judicial, branch of the government.” Id. at 18.11

Conversely, this Court’s decision in Buck v. Jewell La SalleRealty Co., 283 U.S. 191 (1931), upholding a claim by theAmerican Society of Composers, Authors, and Publishersagainst a hotel operator for re-broadcasting copyrightedsongs that it received on its radio, conspicuously did notinvolve any claims against the radio receiver manufac-turer. Nor is it conceivable that this Court would haveheld the manufacturer of either the receiver or transmit-ting tower used in the infringing broadcasts liable in lightof its decision in White-Smith.

More recently, this Court held in Fortnightly Corp. v.United Artists Television, Inc., 392 U.S. 390 (1968), that acommunity antenna television (CATV) operator did not

11It is worth observing that no less an authority than John PhilipSousa concluded that failure to extend copyright to the piano playerroll would eliminate the composition of music. See John Philip Sousa,The Menace of Mechanical Music, 8 APPLETON’S MAGAZINE 278 (1906),available at http://www27.brinkster.com/phonozoic/menace.htm.

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infringe copyright by carrying signals from local televisionbroadcasts. The Court made clear that a CATV system wasno more than a technology of distribution, which, while fa-cilitating unlicensed use of copyrighted material, was notin itself liable as a result of its contribution: “If it were,”said this Court, “many people who make large contribu-tions to television viewing might find themselves liablefor copyright infringement – not only the apartment houseowner who erects a common antenna for his tenants, butthe shopkeeper who sells or rents television sets, and, in-deed, every television set manufacturer.” Id. at 396. Peer-to-peer networking software, such as that distributed byrespondents, is to the Internet what CATV systems wereto TV broadcasting in the 1960s. Petitioners, as thoughunmindful of everything this Court has said in relation totheir past attempts at overreaching, now seek to prohibityet another new technology because it “contributes” to ac-tivities of which they disapprove.

II. Decisions Concerning Fundamental Matters ofCopyright Policy, Particularly in Relation to NewCommunications Technologies, Should Be MadeInitially by Congress

Copyright law since Thomas Edison has been about theperiodic adjustment of social practices in light of rapidtechnological change. Whenever technology itself hasbeen regulated, it has always been by Congress. See, forexample, Audio Home Recording Act of 1992 (AHRA), 17U.S.C. § 1001 et seq., 106 Stat. 4237. “As the text of the Con-stitution makes plain, it is Congress that has been assignedthe task of defining the scope of the limited monopoly.”Sony, 464 U.S., at 429. Here, as in Sony itself, the movieindustry has chosen to seek an expansion of its monopoly,not from the legislature, but in the courts.

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As this Court has said, “[s]ound policy, as well as his-tory, supports our consistent deference to Congress whenmajor technological innovations alter the market for copy-righted materials. Congress has the constitutional author-ity and institutional capability to accommodate fully thevaried permutations of competing interests that are in-evitably implicated by such new technology” Sony, 464U.S., at 431. The movie industry is all for plenary Congres-sional power once that power has been exercised on its be-half; then, to be sure, we are in the province of “judgments[that] require balancing disparate interests and makingpredictions about future behavior. These factually com-plex, predictive determinations are precisely the sort thatlegislatures are most competent to make.” MPAA Br. Am-icus Curiae in Support of Resp. in Eldred v. Ashcroft, No.01-618, at 3. But as Congress has not shown heretofore anyenthusiasm for allowing the movie studios to reconstructthe global Internet for their own financial benefit, despitetheir reasonably heavy monetary investment in individuallegislators, this issue no longer, from their point of view,requires complex predictive determinations or the balanc-ing of disparate interests.12

CONCLUSION

The Court of Appeals properly disposed of petitioners’most recent attempt to displace legislative judgment, by

12An irony that seems to escape petitioners is that the non-theatricalmarket they claim respondents’ computer software inappropriatelythreatens to deprive them of is the market that came into existence asa result of the videocassette recording technology they were suing toprohibit in Sony. Not only is Congress better than the Court at makingpredictive determinations in this area: it appears that it is also betterthan petitioners themselves.

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refusing the massive expansion in their monopoly that pe-titioners claim they don’t need to get from Congress. Thedecision below should be affirmed.

Respectfully submitted.

EBEN MOGLENCounsel of record

435 West 116th StreetNew York, NY 10027(212) 854-8382Counsel for Amici Curiae

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