[DMCA-Activists] re Grokster brief

[Seth Johnson]

-------- Original Message --------
Subject: re Grokster brief
   Date: Mon, 24 Jan 2005 11:03:44 -0800
   From: Malla Pollack <address@hidden>
     To: address@hidden

Dear Seth,

            Thanks for sharing the brief by the Video Software
Dealers’ Assn supporting MGM in the Grokster case.  The brief is
very well written, but quite wrong.  The brief is built on the
assumption that everyone has a common law duty not to infringe
another’s copyright property, which phrase is mis-used to mean a
common law duty not to lower the profits of a copyright holder.
However, copyright is not a common law concept in the USA. US
Const. Art I, Sec 8, Cl 8 gives Congress a limited power to
statutorily grant copyrights and patents if the system “promotes
the progress of” knowledge and new technology.  (The standard
assumption is that “progress” means “quality improvement.”  I
believe that its original meaning was distribution, ie spreading
knowledge and new tech through out the population.   However,
that is not the dispute central to Grokster ; nor is it the
central error in the VSDA’s brief.)

    Under the Constn. Copyright is not a pre-existing common law
property right.  The underlying right (absent statute) is that
the public may copy as much as it wishes (as soon as the author
chooses to write something down).  Copyright is a special
exemption to the public right of access, created to induce
authors to publish.  Copyright exists only when granted by
Congress through statutes.  See Wheaton v Peters, 33US 591
(1834).  Therefore, one breachs some legal “duty” to the
copyright holder only when one violates the clearly expressed
statutes created by Congress – not when one acts in a
statutorally allowed manner which lowers the profits of copyright
holders.   Everyone agrees that someone disseminating infringing
copies is violating copyright statutes, but that is not
determinative of whether the Grokster system is itself an
infringement.

        I will be filing an amicus brief supporting Grokster
which makes this argument, among others.

Sincerely

PS I would appreciate your posting this message to the list.

Malla Pollack

Visiting Associate Professor

Univ. of Idaho, College of Law

address@hidden

208-885-2017 [please note change]

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