MGM v. GROKSTER: Brief of Amici Curiae - Kenneth J. Arrow, Ian Ayres, Gary Becker, William M. Landes, Steven Levitt, Douglas Lichtman, Kevin Murphy, Randal Picker, Andrew Rosenfield, and Steven Shavell

Abstract

This amicus brief was filed at the Supreme Court prior to the oral argument in MGM v. Grokster. It argues that contributory infringement, vicarious liability, and other forms of indirect liability are entirely proper theories of liability for copyright enforcement, much as similar theories have long been viewed as proper elsewhere in the law. We further argue that copyright law ought not be read to waive off these theories of indirect liability merely because the product at issue is capable of some substantial non-infringing use. Such a rule would give manufacturers no incentive to deter infringement even when deterrence could be accomplished at low cost and without any significant interference with non-infringing uses. That is a needlessly inefficient interpretation of the law and hence should be rejected.

Keywords: Grokster, Napster, vicarious liability, contributory infringement, indirect liability, third-party liability, copyright, peer-to-peer, Sony, Universal, substantial non-infringing use

JEL Classification: O34, K11, K00