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Monday, June 27, 2005
A Balanced View
Grokster | Posted by Susan Crawford at 12:34 PM
Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
Now, that's not to say that there aren't some clouds here for technology companies. If you've got a stated intent to help others infringe, and a bunch of "bad" ads, and lots of other evidence of culpable intent, and THEN someone writes to you and encourages you to adopt their filtering technology, and you don't -- well, then you might be liable for inducement. There are certainly ways that this opinion might spark litigation.
But for the moment, tech companies can breathe easy. Distribution of a general-purpose copying device, by itself, is simply not an infringing act. And that was the right decision. Happy summer vacation, Justices.
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Comments
I agree entirely, the decision clarifies SONY in a way that continues to protect innovation and technology at the same time as it protects content owners by excoriating the Streamcase and (less so) Grokster business plans which appear to have relied on encouraging infringement.
Interestingly, Justices Ginsburg, Rehnquist and Kennedy would have held that the decision could have been made not only on the grounds of inducement, but on the basis that in light of the MGM survey showing 90% infringing uses there was no "substantial noninfringing use." As expressed in his concurrence, however, Justice Breyer (joined by Stevens and O'Connor) rebutted this by pointing out that a survey introduced in SONY showed only 9% noninfringing use! It is significant that although the Court decision was unanimous, the Justices also favored maintaining SONY without interpreting it more strictly by a 6-3 margin.
Posted by: Michael R. Graham at June 27, 2005 01:22 PM