Grokster loses, trouble in digital land

One thought on “Grokster loses, trouble in digital land”

  1. The 9-0 decision masks some interesting divisions on the Court, if you read the opinions. The Justices clearly viewed that there was enough evidence that Grokster was specifically encouraging infringing uses that a trial could proceed. This does not change the test outlined in Sony, where a company which makes a device with “substanial non-infringing uses” is immune from liability so long as they market it for its legitimate uses and do not encourage the infringing uses. One is immune from people using a product in an illegal way, but not if you advertise it in that illegal manner. Hence all the grey market “Copy Stabilizers” and such for VHS.

    The Justices agreed that Grokster failed the test laid out in Sony, but three of the Justices (who joined the Ginsburg opinion) seemed to think that the evidence of overwhelmingly high use (some ~90%) for infringing purposes would be prima facie evidence against Grokster. OTOH, three justices specifically joined Breyer’s opinion (including Stevens, the author of the originial Sony) case, in order to disclaim that and state that without the inducement to infringe on Grokster’s part, all would be well. The other three joined neither concurrence, although a footnote in Souter’s main opinion suggests that the inducement was necessary, and the existence of the substantial infringing uses was not sufficient.

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