Journal Article

Overcoming the challenges posted by technology to traditional copyright law: from <i>Betamax</i> to <i>Grokster</i>

Anirudh Wadhwa

in Journal of Intellectual Property Law & Practice

Volume 2, issue 7, pages 487-491
Published in print July 2007 | ISSN: 1747-1532
Published online May 2007 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpm078
Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

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Legal context

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).

Key points

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.

Practical significance

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.

Keywords: In the absence of specific statutory guidance, the courts' approach towards ‘dual use’ technologies has of necessity been empirical, depending on the application of existing copyright rules and producing results that are governed by the nature of the disputes before them.; Two contrasting examples of the courts' approach towards dual use may be seen in the US litigation in the Betamax and Grokster cases, where challenges to the legitimacy of technology capable of both infringing and non-infringing use generated contrasting results.; This article reviews some of the policy issues arising from dual use, asking whether it is better for copyright owners to challenge dual use tools or to find a means of accommodating themselves to their likely continued use.

Journal Article.  2820 words. 

Subjects: Intellectual Property Law

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