Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright — the wrong of providing technology that induces copyright infringement. It announced this new form of liability even though at precisely the same time Congress was holding hearings about whether to amend the Copyright Act to create the same liability.
The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.
Viacom has now accepted this invitation from the Supreme Court.
March 18, 2007
According to Lawprof Lawrence Lessig. The 1998 Digital Millennium Copyright Act should have precluded this outrageously wasteful litigation, but the Supreme Court deprived us of the legislative resolution: