MGM v. Grokster

Malla Pollack, American Justice School of Law

Abstract

This brief makes three aguments against copyright liability for Grokster. First, Petitioners’ request to close down offending technology is not supported by clear statutory authority. While the Court has power to create common law, in an area, such as this, where Congress has enacted detailed statutes, the Court’s common law power is minimal. Title 17 U.S.C. § 1201(c)(2) does not delegate authority for the Court to promulgate new common law. Second, In the absence of congressional action, the Copyright Clause of the Constitution sets the default position as a public right of access to copyrightable and patentable subject matter. The Clause’s core goal is the distribution of knowledge and technology to the general public. Petitioners’ request is in extreme tension with these constitutional basics. Petitioners ask the Court to limit lawful public access to copyrightable works by outlawing a multi-purpose distribution technology on which Petitioners do not hold a patent. Third, Petitioners are requesting this Court to go beyond Congress into an area of high constitutional uncertainty by creating patent rights without the constitutionally required quid pro quo, a nonobvious invention. Opinion at 125 S. Ct. 2764 (2005).