Berlin

LAST week, Viacom asked a federal court to order the video-sharing service YouTube to pay it more than $1 billion in damages for some 150,000 videos that Viacom claims it owns and YouTube users have shared. “YouTube,” the complaint alleges, “has harnessed technology to willfully infringe copyrights on a huge scale,” threatening not just Viacom, but “the economic underpinnings of one of the most important sectors of the United States economy.”

Yet as federal courts get started on this multiyear litigation about the legality of a business model, we should not forget one prominent actor in this drama largely responsible for the eagerness with which business disputes get thrown to the courts: the Supreme Court.

For most of the history of copyright law, it was Congress that was at the center of copyright policy making. As the Supreme Court explained in its 1984 Sony Betamax decision, the Constitution makes plain that “it is Congress that has been assigned the task of defining the scope of the limited monopoly,” or copyright. It has thus been “Congress that has fashioned the new rules that new technology made necessary.” The court explained that “sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials.” In the view of the court in Sony, if you don’t like how new technologies affect copyright, take your problem to Congress.

The court reaffirmed this principle of deference in 2003, even when the question at stake was a constitutional challenge to Congress’s extension of copyright by 20 years. Challenges are evaluated “against the backdrop of Congress’s previous exercises of its authority under the Copyright Clause” of the Constitution, it wrote. Congress’s practice — not simply the Constitution’s text, or its original understanding — thus determined the Constitution’s meaning.