University at Buffalo - The State University of New York

Published: June 2, 2005

By JOHN DELLA CONTRADA
Contributing Editor

In MGM Studios v. Grokster, a case that could affect millions of consumers who use file-sharing software to copy music and video content, the Supreme Court likely will uphold a 1984 ruling stating that companies that offer copying technologies cannot be held liable for copyright infringements of users, according to Shubha Ghosh, a UB law professor and an expert on intellectual property and cyberspace law.

The Supreme Court is expected to announce a ruling on the case before the conclusion of its current session, ending this month.

"The decision will have implications not only for file-sharing, but for any company that creates technologies that can be used to copy copyrighted materials, including companies that make TiVo players, next-generation scanners and digital cameras," says Ghosh, who helped draft an amicus brief filed by Intellectual Property and Technology Law Professors in support of Grokster.

In the case, MGM, representing 28 of the world's largest entertainment companies, brought a lawsuit against Grokster and other makers of file-sharing products in an attempt to make them liable for copyright infringements of their users.

According to Ghosh, at issue is the continuing viability of the Supreme Court's 1984 landmark decision in Sony v. Universal City Studios, in which the court determined the liability of Sony VCR products in facilitating copyright infringement.

"The court ruled that since the VCR could be used in ways that did not infringe copyright, Sony would not be liable for copyright infringement," Ghosh points out.

"In Grokster, the court will decide whether the substantial non-infringing-use test is still the legal standard for liability of companies that produce copying technologies or whether the knowledge or intent of the creator of the technology will be considered for liability," he explains.

Ghosh predicts in Grokster the court likely will maintain the new-technology-friendly Sony standard of substantial non-infringing use.

"It is a workable standard and is the standard used in patent law, copyright's close cousin," Ghosh says.

"The court might tinker with the standard a little bit by saying that knowledge or intent of the creator can be taken into consideration," he adds. "But given the composition of the court, the standard is not likely to change, although it will be a close decision, possibly 5-4 or 6-3.

"If the court does not change the standard, that means a victory for Grokster since a lower court applied the Sony standard in its April 2003 decision in favor of Grokster."

Ghosh has written on a wide variety of legal topics, including cyberspace, intellectual property, employment and antitrust issues. He is author of "AntitrustProf Blog" (http://lawprofessors.typepad.com/antitrustprof_blog/), which is published by the Law Professors Blog Network and assists law professors in their scholarship and teaching.