P2P In Court, Part 3: What Are The Issues

To get the context, you might want to read these posts:

1. P2P In Court: MGM vs Grokster and Its Affect On Us
2. P2P In Court, Part 2: A History Lesson, Or Why You Have a VCR

So what are the issues? They are pretty simple, actually. This is what MGM is saying:

1. Grokster and StreamCast, the defendants, have built software that is used roughly 90% of the time for copyright infringing uses.
2. The major issue is that the defendants actually actively encouraged copyright infringement.

The response is equally as simple:

1. Many users do infringe copyright with their software, but many also use it in ways that do not. Thus they should be protected under the Sony ruling.
2. They did not actively encourage copyright infringement.

Here is where a conversation with my legally informed brother Kirk was very helpful. Basically, there are two kinds of trials, a trial about matters of fact and a trial about matters of law. In the former the two parties disagree about something that was done, and a jury is assembled and evidence is presented to determine whether or not the defendant did what was said. On the other hand, there are trials about matters of law, where the parties substantially agree on the facts but just disagree on the legality of the actions of the defendant. An example of the former would be a murder trial. The question in that kind of trial revolves around whether or not the defendant committed the murder. We already know it is illegal to commit murder, so that is not up for discussion. In that case it is about the facts. But the MGM vs Grokster case is a matter of law, not primarily fact. It was very clear that Grokster and StreamCast created software that was being used for the infringement of copyright. The question was, were Grokster and StreamCast in the wrong when they did that?

In the lower courts both parties moved for summary judgment, meaning they were both looking for a trial about the lawfulness of the actions of Grokster and StreamCast. Since there wasn’t substantial disagreement on the facts, no jury was needed.

Well, in several lower courts, it was the defendants who won based on reason 1, that the Sony rule protected them. But the Supreme Court disagreed. Why? That’s the next post.