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Remedying <i>Grokster</i>

By Fred von Lohmann

Don't you hate it when you ask someone a question and, rather than answering it, they choose to answer a different one? Then you understand the frustration that technology lawyers feel in the wake of the Supreme Court's opinion in Metro-Goldwyn-Mayer, Inc. v. Grokster Ltd. The question asked by the parties and dozens of amici was direct and critically important: when will a technology vendor be held liable for the copyright infringements committed by third parties with its products? Asked to clarify the reach of copyright law's existing secondary liability doctrines, however, the Court instead announced a new doctrine for copyright: inducement.

The Court's ruling leaves technology companies and their attorneys to pick their way through a dangerous minefield of legal uncertainties. The trouble is not principally with the new doctrine of inducement announced by the Court: “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Rather, the trouble is the continued uncertainty surrounding the traditional copyright doctrines of contributory infringement and vicarious liability. In other words, it's not so much what the Court said, as what it didn't say, that ought to worry innovators and their attorneys.

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