Grokking Grokster

49 Pages Posted: 28 Feb 2005

See all articles by Raymond Shih Ray Ku

Raymond Shih Ray Ku

Case Western Reserve University School of Law


Much more is at stake in Metro-Goldwyn-Mayer Studios v. Grokster than the standard for secondary liability under copyright. Ultimately, the Supreme Court must decide whether judges should interpret intellectual property in defense of the existing market structure and to prevent the current paradigm from shifting. This becomes clear when one recognizes that the competing positions in Grokster are representative of a debate between what the author describes as property pragmatists and property idealists. In resolving this intellectual property debate, the author argues that the Supreme Court should be guided by history and the precedent the Court established for real property in the Charles River Bridge v. Warren Bridge decision. In both cases, the property pragmatist's position was and is appropriate because the decision to expand legislatively granted rights requires the evaluation of complex facts and choices between competing interests and values for which the Supreme Court is not well suited, and a judicial decision expanding those rights would insulate a particular set of economic interests and values for generations. According to the author, the pragmatic position is consistent with the Supreme Court's historic approach towards copyright, and the property idealist's claim that Congress cannot be relied upon to deliver a legislative solution is inconsistent with this same history. Lastly, the pragmatic position is justified because it recognizes the non-linear nature of progress as illuminated by the study of economics and science.

Keywords: Secondary liability under copyright, Copyright, Intellectual Property, Property Pragmatists, Property Idealists, Market Structure, Economic Analysis, Goldwyn-Mayer Studios v. Grokster, Charles River Bridge v. Warren Bridge

JEL Classification: K11, K40, O34, O38

Suggested Citation

Ku, Raymond Shih Ray, Grokking Grokster. Case Legal Studies Research Paper No. 05-5, Available at SSRN:

Raymond Shih Ray Ku (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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