08 February 2005

No, You Weren't the First

Over at the Conspiracy, David Post proclaims that:

…I think the Court will send the case back to the Ninth Circuit and say: you were right that, under Sony, the non-infringing uses here are substantial enough so that, standing alone, providers of these p2p technologies can't be held liable for the copyright infringements of network users. But — and here's the critical part — on these facts, it doesn't stand alone; there's evidence in this record that Grokster and the other defendants actively encouraged and induced its customers to infringe copyrights, and that inducement of this kind is not protected by the Sony safe harbor. The Court will then instruct the Ninth Circuit to re-open the case and evaluate whether or not this evidence is enough to hold the defendants liable on an inducement, or "aiding and abetting," theory of liability.

and that we've "heard it [from Post] first." Hmm. I wonder if I can remember anyone else pointing to this kind of thing?

In Aimster, there was substantial evidence in the record—as in Napster—of the principal's intent to facilitate widespread infringement. This evidence was apparently absent in Grokster. By itself, I think this distinction is enough to vitiate any purported circuit split. It's not that I think the Software Distributors in Grokster were saints who just wanted to play with a kewl technology; it's that sufficient evidence of intent to facilitate not just file transfer, but infringing file transfer, was not entered against them in the trial court.

(emphasis in original) (20 Aug 2004). I said it before, and I'll say it again: Grokster is about civil procedure at least as much as it is about copyright. There are important copyright issues, true; but the real problem is the application of the record to the law, not the law itself. From what I've seen, the Seventh Circuit got it right in Aimster and the Ninth Circuit may have made a mistake in Grokster. Not that this gives me warm and fuzzy feelings about Big Media, though; I almost exclusively represent the other victims of media consolidation: performers and writers.