Grokster Decision Reveals Split on Intent Requirement
"It's a unanimous victory for the entertainment industry plaintiffs," he writes, "but actually not quite as one-sided as all that:"
The full court says: even if you meet the Sony standard (i.e., even if you
have "substantial noninfringing uses"), you can still be liable for inducing
copyright infringement, if there's evidence that you actively encouraged or
promoted infringing conduct. And there is such evidence in this case.
More interestingly, though, the Court is split on the question: Can you be liable
for distributing file-sharing software if you are NOT actively inducing/encouraging/promoting its use for infringing purposes. Three Justices
(Ginsburg, Rehnquist, Kennedy) say: Yes, you can, if the product is primarily
used for infringement. Three of the Justices (Breyer, Stevens, O'Connor) say:
No, you can't, as long as there's evidence that the product is capable of being
used in a noninfringing way. So it's a 3-3 split on that question.
The other 3 Justices (Scalia, Souter, Thomas) take no position on this point (on the grounds that it's not necessary to decide this case, where there is such evidence of
inducement/encouragement.) Though there is a footnote 12 in which they seem to suggest that they're on the Breyer (no) side of the line:
"Of course, 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 noninfringing uses. Such a holding would tread too close to the Sony safe harbor."
StreamCast's general counsel's take on the opinion was a bit less nuanced, reportedly calling it "Orwellian," and describing lawyers for media companies as "the new thought police." Perhaps, but will their mind-reading powers be able to penetrate a simple warning label advising against infringing uses of the next generation of this technology?