But again, the mere possibility that infringement may confer benefits on copyright owners can't suffice to defeat a suit for contributory infringement any more than it could defeat a suit for direct infringement, as it is always possible to conjure up such possibilities. If the Grokster case is tried, the trial will provide an opportunity to compare the revenue loss to the copyright owners against the possible gains that I have listed. Unfortunately, subjecting providers of file-sharing software to the threat of trial places them at substantial risk, which may drive many of them from the market.
His real conclusion is that "any diminished innovation due to contributory-infringement liability must be traded off against the enhanced innovation that can be expected if intellectual-property rights are strongly protected by the law." Similarly, Professor Becker notes:
I do believe the case deserves a trial, and primarily for this reason I signed (without any compensation) an Amici Curiae brief submitted by several economists to the Supreme Court against Grokster. The arguments about infringement are set out in that brief and in Posner's discussion. This software has few other uses so far other than to copy files from one computer to another, which often is a violation of copyright protection on the files copied. Although Grokster is not per se violating any copyright by producing this software, its software unquestionably facilitates these violations. It is also much more efficient to litigate against the contributory infringement of Grokster than to litigate against every college student and other individuals who are actually engaged in transferring files illegally.
On the other hand, Professor Becker also expresses skepticism that judges are the right people to determine the economic balance; he would rather strictly use markets.
Although I certainly think that economic analysis is a critical element of any realistic appraisal of intellectual property, I think Professor Becker goes a bit too far in his advocacy of markets as a check on contributory infringement. P2P technology is a classic instance of a market failure: the cost and value of an original is vastly greater than that of an indistinguishable copy, and the convenience of making that copy via a P2P network is far greater than going to the local music store, waiting in line, then paying sales tax on top of one's purchase. (Not to mention the cost of gas these days… whining that "it's more expensive in Europe" will be met with comparisons of public transportation, so there.) Ironically, it is only when the volume of such copies is small that the market has any real balancing effect—because the direct infringers who are enabled by the contributory infringers have explicitly opted out of the market established by the Intellectual Property Clause. In other words, it is a secondary market when the enabling provision explicitly provides for a restricted market ("exclusive Right").