The Copyright Paradox - Understanding Grokster

24 Pages Posted: 25 Oct 2005

See all articles by Tim Wu

Tim Wu

Columbia University - Law School

Abstract

Over the last decade, writers begun to try and understand the other side of copyright, sometimes called its competition policy, communications policy, or regulatory side. This paper focuses attention on a crucial problem familiar to antitrust courts that is becoming more clearly important to copyright decisions. In both copyright and antitrust, a central question is how important intent is. Judges, stated slightly differently, face a choice between what we can characterize as the bad actor and welfarist models of deciding cases. What we can call the bad actor approach punishes alleged wrong-doers based on the mens rea of the suspect, and the prospect of harm to favored sectors of the economy, like small businesses (in antitrust) or the entertainment industries (in copyright). A second, or welfarist approach calls for judges to generally ignore intent or bad behavior in exchange for a more disciplined focus on questions of industry economics and consumer, or user welfare.

Over recent years the Supreme Court has steered copyright doctrine closer to an intent or bad actor premised analysis. While politically attractive, the long term effects of this approach can be expected to be pernicious.

Keywords: copyright, antitrust

Suggested Citation

Wu, Tim, The Copyright Paradox - Understanding Grokster. Supreme Court Review, 2006; Stanford Law and Economics Olin Working Paper No. 317. Available at SSRN: https://ssrn.com/abstract=828784

Tim Wu (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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