The New Legal Landscape for Digital Media

MGM v. Napster Panel Discussion

Sound Policy
50 minutes, 23mb, recorded 2005-09-20
Barry,Howell, Beattie and Samuelson
In June of 2005 the U.S. Supreme Court unanimously held that Grokster and Streamcast (providers of Morpheus peer-to-peer software) could indeed be sued for infringement for their prior activities. But what brought us to this point in time and what will the decision mean for current peer-to-peer companies and software? What does the decision mean for developers in the future? This September 20th, 2005 panel discussion at the University of California Berkeley addresses these questions and looks to the past in order to discover the legal landscape of the future for digital media.

To understand the background of the MGM v. Grokster case, the panel started by looking back at a well-known case of twenty one years ago known as the Sony safe-harbor principle which was set by the Supreme Court in Sony v. Universal Studios. It stated that "..the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial non-infringing uses." Grokster argued that the proof of reasonable, non-infringing use is sufficient to fulfil the Sony safe-harbor principle. The RIAA and MPAA argued that the Sony safe-harbor principle requires proof that the primary use is a non-infringing one, not that the non-infringing use is incidental.

The court's decision was compared to issuing a fishing license to someone with unlimited bait and no limits. The RIAA and MPAA can, and already have issued numerous lawsuits against small and large peer-to-peer software makers and networks. Will their unlimited legal funds and the fact that they are forcing companies to prove their innocence break the back of these companies? On the other hand, from August of 2004 until August of 2005, the number of computer users sharing files on peer-to-peer networks increased from 6 million to 9 million. Will the RIAA and MPAA realize they are fighting a losing battle if they lose a few of these early lawsuits? Join moderator Greg Beattie, Denise Howell, Hank Barry, and Pamela Samuelson as they discuss these issues with the audience at the University of California at Berkeley.


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Greg Beattie maintains a corporate and technology law practice, emphasizing start-up and private company representation, venture fund representation, mergers, acquisitions and strategic joint ventures, technology licensing, protection and transfers, and securities and commercial law. He represents a broad spectrum of computer device, networking and infrastructure companies, venture capital firms and a variety of distribution, retail, service and manufacturing concerns. Greg is also an accomplished songwriter and performer. His songs have won several awards and have been published and performed in television and movies. He and his wife Victoria perform in the band Calaveras, which receives airplay on independent radio stations around the country.

Pamela Samuelson is a Chancellor's Professor of Information Management and of Law at the University of California at Berkeley, as well as a Director of the Berkeley Center for Law & Technology and an advisor to the Samuelson High Technology Law & Public Policy Clinic at Boalt Hall. She teaches courses on intellectual property, cyberlaw and information policy. She has written and spoken extensively about the challenges that new information technologies pose for traditional legal regimes, especially for intellectual property law. She is a Fellow of the Association for Computing Machinery (ACM), a Contributing Editor of Communications of the ACM, a past Fellow of the John D. & Catherine T. MacArthur Foundation, and an Honorary Professor of the University of Amsterdam. She is a member of the Board of Directors of the Electronic Frontier Foundation and of the Open Source Application Foundation, as well as a member of the Advisory Board for the Electronic Privacy Information Center

Hank Barry is a partner at Hummer Winblad. He joined the firm in July 1999. Prior to joining Hummer Winblad, Hank was a partner with Wilson Sonsini Goodrich & Rosati, a technology law firm, where he led the firm's interactive new media practice. Prior to that, Hank was a partner at Cooley Godward, where he led that firm's Technology Transactions group. Hank was principal outside counsel to several pioneering Internet companies, including Global Village Communications, Looksmart, Liquid Audio and NetDynamics. From May 2000 to May 2002, he served as CEO and a member of the board of directors of Napster, Inc.

Denise Howell is an appellate and intellectual property litigator in the Los Angeles office of Reed Smith, a Global Top 20 law firm. She has handled matters for a wide variety of industries and individuals, including Internet technology and bioscience companies, video game companies, real estate developers, professional sports teams, manufacturers, distributors, professional service providers, financial institutions and non-profit organizations. Denise's IT Conversations series, Sound Policy (http://soundpolicy.net), probes the areas where technology and society intersect in ways that present new, unique, or difficult issues under existing and developing law. Denise writes one of the first law related weblogs, Bag and Baggage (http://bagandbaggage.com). She also contributes to Corante's Between Lawyers (http://corante.com/betweenlawyers) and other publications.

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