One of the best commentaries on the oral argument in the Grokster case, which was before the Supreme Court yesterday, comes from Timothy K. Armstrong, a DC appellate attorney/Harvard LLM student. Read the whole thing: A Few Notes from the Grokster Argument.

I found this passage particularly interesting:

At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.MGM�s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one�s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM�s side of the case who don�t think that example is one bit legal. But they�ve now conceded the contrary in open court, so if they actually win this case they�ll be barred from challenging �ripping� in the future under the doctrine of judicial estoppel. [emphasis added]

We don’t have the actual transcript yet, so it isn’t entirely clear precisely what MGM has admitted or what sort of estoppel would apply. However, if the gist of this exchange is true, then MGM has conceding something that Hollywood has been loathe to concede and I’ve never, ever heard them actually concede in public, let alone in a courtroom: that format-shifting or space-shifting outside the scope of 17 USC 1008 (which basically covers DAT and cassette tape players) is a lawful activity.

Now no one ever really expected Hollywood to go after people for ripping their CDs to an MP3 player. That would be foolishness on a grand scale, since courts are likely to expressly find such actions to be legitimate fair use. So they haven’t. Still, they seem to base a lot of their legal theories and rhetoric on the fact that such space-shifting is illicit, particularly with regard to DVDs.

Ignoring the DMCA for a moment, if ripping your CD to MP3s is legal fair use space-shifting, why isn’t ripping your DVD to DiVX also legal fair use space-shifting? What would be the principled distinction between the two types of space-shifting? I can’t imagine one.

So, remind me of the reason for the DMCA again? It doesn’t stop determined infringers and mostly keeps companies from selling devices to enable all sorts of lawful uses. And, if ripping a DVD is a lawful use, how is it that copyright protection turns it into unlawful “access”?

UPDATE 1000 PT – 31 Mar 2005

Constitutional Code also addresses this concession ( MGM’s Concession and the DMCRA).

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