Chilled Innovation v. Balanced Evolution: Reflecting on Indirect Copyright Liability in the Digital Age

The Media Institute

By Peter S. Menell

Following the Supreme Court’s Grokster decision four years ago, Professor Lawrence Lessig predicted that the decision would gravely hamper innovation in digital technology. See Robert Hof, “Ten Years of Chilled Innovation,” Business Week (June 29, 2005). This prediction reflects plausible logic. 

If those who develop technology that can be used to infringe copyrights are exposed to potentially crushing liability – such as what befell Napster, MP3.com’s MyMP3 music locker service, ReplayTV’s digital video recorder, and Grokster – it seems reasonable to surmise that digital technology innovators would, certainly at the margin, invest their resources and energies elsewhere. Such concerns tap into deeply held values and profound beliefs of our society: the role of innovation in driving social and economic progress, the belief in the unfettered search for knowledge, and freedom of expression.