Bittorrent, Grokster, and Why Entertainment and Internet Lawyers Need to Prepare for the Fair Use Argument for Downloading Television Shows

Abstract

This article examines the legal issues facing copyright holders of television shows whose product is available online through modern peer-to-peer networks such as BitTorrent. In a copyright infringement suit against these distributors or end users who download the files, the court will first have to determine whether liability based on the fair use doctrine applies, as explained by the Supreme Court's 2005 Grokster decision. Although the opinion provides guidance for litigants and courts in these particular infringement cases, many of the recent downloading programs have already taken a more proactive position to deter piracy. In these situations, these distributors may be absolved from Grokster-liability due to active monitoring and other affirmative steps. Regardless of how the court weighs this issue, however, it will have to address whether the fair use doctrine applies to television shows obtained through this technology. While fair use has generally been undisputed in music copyright litigation, this article suggests that the fair use analysis may produce different results depending on whether the end user downloads for a private viewing experience or whether the end user downloads and extends the use beyond mere private viewing. The latter download and distribution, particularly in the case of unlicensed commercial distributors makes any fair use argument more tenuous. This article concludes with presenting practical solutions to the television downloading problem.

Keywords: BitTorrent, Grokster, fair use, peer-to-peer, piracy, copyright infringement, television shows, television show downloads, media download, media downloading

JEL Classification: O34, K49