Pre-class Discussion for Jan 8

MGM v. Grokster

• While MGM won this lawsuit the real victory may have gone to the technology industry. MGM clearly didn’t want to win under inducement because a P2P technology that didn’t encourage or induce infringement would not be liable under that theory—but exactly this happened. On the other hand, the technology industry hailed the Grokster decision because it saved the Sony Safe Harbor and did not require filtering technology. Post Grokster every p2p maker is likely to be more careful about marketing and offering customer support for infringing activity rather than mechanisms to filter out infringing content. Justice Souter stuck this important piece of dicta into Footnote 12: "in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial non-infringing uses. Such a holding would tread too close to the Sony safe harbor." See MGM v. Grokster, 545 U.S. 913 (2005), Majority opinion, pp. 22.n12. On the flip side, Mark Lemley considers this victory to be less than ideal because the inducement/intent standard is vague and provides the content industries/judges ample room to find intent and thereby squelch innovation. See Stanford law forum on Grokster

• In another part of the opinion Justice Breyer cites amicus briefs that conflict over whether such detecting/filtering of infringement is hard. See MGM v. Grokster, 545 U.S. 913 (2005), Breyer concurrence, pp. 11. Both this and Justice Souter's majority opinion seems to hint at the lack of expertise on the part of judges to decide whether or not a technological design will promote infringement. One wonders whether a "special master" is better suited to do this.