From The Washington Post:
In
<http://letters.washingtonpost.com/W6RH04C5C064AD9BC6D7A3C8141400>Metro-Goldwyn-Mayer
Studios Inc. et al. v. Grokster, Ltd., et al., the Court held that Grokster
could be sued by MGM and other entertainment industry firms for its
creation of a peer-to-peer file-sharing service. That's not because
Grokster's software could be used for downloading movies and music, nor
because Grokster's software was being used for that purpose, nor even
because the Groksterites intended that use.
The difference here, Justice David Souter wrote for a 9-0 majority, was
that Grokster advertised itself as a way to get movies and music without
paying. To quote
<http://letters.washingtonpost.com/W6RH04C5C0575D9BC6D7A3C8141400>Souter's
opinion: "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."
This is a somewhat fine distinction that seems to have gotten lost in some
we're-all-gonna-die! analysis. The ruling does not throw people in jail for
making hardware or software that could be used to share copyrighted works.
It does not require the developers of hardware and software to act as
copyright cops.
The ruling makes this clear on page 19: "Mere knowledge of infringing
potential or of actual infringing uses would not be enough here to subject
a distributor to liability," and in footnote 12 on page 22: "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."
Robert Turnbull, Toronto, Canada
