Grokster Loses Unanimously
The Grokster decision is out. USACM has been following the case (and joined an amicus brief (pdf) on the case themselves) and is one of a whole bunch of sites with info on the impact of today’s ruling against Grokster (and StreamCast) on technology and innovation.
My non-lawyerly, first reading of the ruling (pdf) is that the “loss” for Grokster in the case may not be the blow to innovation technologists were concerned it could have been. The court seems to have ruled against the software companies not because they thought the safe harbor established in the Betamax case was too broad (Betamax established the concept of relief from secondary liability for companies that produce products that could be used to infringe copyright if there are “substantial non-infringing uses” of the technology); rather, the court felt that these two defendants had actively induced the infringement and profited from it. Here’s what the ruling says:
We adopt [the inducement rule] here, holding that one who distributes a device with the object of promoting is use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony [the Betamax case] did not find intentional inducement despite the knowledge of the VCR manufacturer that it’s device could be used to infringe…mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.
There’s much more informed discussion of the ruling over at the SCOTUSblog, including the participation of computer scientist Ed Felten (who normally lives at Freedom-to-Tinker).
Update: Felten has some deeper analysis than mine with reasons to be concerned.
Update: Cameron Wilson has more deep thoughts (and USACM’s press release on the decision) at the USACM Tech Blog.