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Monday, June 27, 2005
A lot to like . . .
Grokster | Posted by Ian Gershengorn at 01:23 PM
I can’t offer a balanced view because we represented the petitioners (the content providers) in the case. We are still in the process of digesting it all, but some initial reactions seem appropriate. From the content providers' side, there is a lot to like in the Souter opinion.
First, all nine Justices recognized the problem that copyright owners face. Justice Souter wrote that “the probable scope of copyright infringement is staggering,” and the Court noted the “evidence of infringement on a gigantic scale.” The Court also noted that “digital distribution of copyrighted material threatens copyright holders as never before, because every copy is identical to the original, copying is easy, and many people (especially the young) use file-sharing software to download copyrighted works.” This is precisely the problem that content providers have identified and sought to remedy.
Second, the inducement standard the Court adopted is quite broad. Unlike Douglas Lichtman, I don’t think it will be so easy for systems like Grokster to simply “cleanse” their record. The Court’s standard properly makes relevant a lot of information that the content providers believe ought to be relevant, but that respondents had sought to render irrelevant. For example, the Court emphasized that respondents did not “attempt[] to develop filtering tools or other mechanisms to diminish the infringing activity” and the fact that they “make money by selling advertising space, by directing ads to the screens of computers employing their software.”
Third, the Court recognized the need for a “sound balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies.” It has been the content providers’ view all along that whatever a “sound balance” is, it cannot be that all of the content is available to everyone for free. That is no balance at all.
Fourth, although the Court did not address Sony, it vacated the Ninth Circuit’s standard – indeed, no Justice advocated the Ninth Circuit’s heightened knowledge standard. Moreover, the Court left open the possibility of vicarious liability. In short, the legal world was returned to its “pre-Grokster” order. In that order, both Courts of Appeals that had addressed peer-to-peer systems – the Seventh Circuit in Aimster and the Ninth Circuit in Napster – had found those systems to be culpable.
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