Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster
Anirudh Wadhwa · Journal of Intellectual Property Law & Practice · 2007
Dual use technology, or technology which can be used for both infringing and non-infringing uses, raises interesting issues in the area of copyright law. This note analyses inter alia the two US Supreme Court decisions on dual use technology, separated by a gap of over 20 years—Sony v Universal Studios (1984) and MGM v Grokster (2005). Sony lays down the famous ‘Betamax’ defence—if the technology is ‘capable of substantial non-infringing uses’, then it cannot be challenged as infringing. This test had stood the test of time, and it is only recently in Grokster that there arose an occasion to reconsider its application. The Court in Grokster, borrowing from the jurisprudence developed in Patent law, recognized a novel test of liability—based on the active ‘inducement’ to infringe. The flaw in Grokster is that despite its attempt to develop new standards for a digital age, the ruling leaves areas of uncertainty. Dual use technology has become ubiquitous in this age—from the iPod to YouTube to P2P software, all are capable of being used in lawful as well as unlawful ways. Legal pronouncements have the potential to impact not just the development of law, but also innovation in technology. Some believe that the ‘bright line’ of Sony has been muddled thereby threatening technological innovation. Others, me included, believe that Sony is inapplicable in the face of new technology, and hail the decision in Grokster as a positive step forward in what it actually decides. However, in what it does not decide, Grokster still represents a lost opportunity by the Court to clear up the muddled waters.