Posted by Eugene Volokh:
Grokster:
The Ninth Circuit has just [1]affirmed a district court's decision
that the distributors of Grokster, a peer-to-peer file-sharing
service, weren't liable for contributory or vicarious copyright
infringement.
My thoughts, which unfortunately probably presuppose a knowledge or
reason to know of the legal structure of contributory infringement
(which generally requires knowledge of specific illegal use or lack of
substantial noninfringing uses, plus material contribution) and
vicarious liability (which generally requires more or less direct
financial benefit, plus right an ability to control, but that's all
very terse shorthand for more complex doctrines): The Ninth Circuit
decision is right on the bottom line, and on most of the analysis, but
mistaken when it finds that Grokster didn't "materially contribute" to
the infringement.
Providing a tool that makes an action easier is indeed material
contribution. Gun manufacturers and distributors do materially
contribute to crime; alcohol manufacturers do contribute to drunk
driving, and car manufacturers to speeding; Grokster does materially
contribute to infringement. The point is that all these products are
dual-use products, usable for good as well as for ill. The
distributors are also materially contributing to law-abiding behavior,
and they don't know which particular user is going to act lawfully and
which unlawfully (I think the Ninth Circuit was quite right on the
knowledge prong). The distributors' actions therefore aren't banned,
because the bans would interfere with lawful uses as well as unlawful
ones.
On the other hand, if the knowledge element is satisfied -- if, for
instance, I sell a gun to someone knowing that he is going to use it
for criminal purposes, or sell someone a device knowing that he will
use it to infringe -- it seems to me that the case for tort liability
or in some situations even criminal liability is very strong. Selling
such devices does help the person commit the tort or the crime, and
there's little reason to shield such sales from liability when the
seller knows the would-be tortfeasor's or criminal's intentions. See,
e.g., RESTATEMENT (SECOND) OF TORTS � 876 ("For harm resulting to a
third person from the tortious conduct of another, one is subject to
liability if he . . . (b) knows that the other's conduct constitutes a
breach of duty and gives substantial assistance . . . to the other so
to conduct himself"). (In criminal cases, some states allow aiding and
abetting liability only when the actor's *purpose* is to help someone
else to commit a crime, but other states allow such liability, or
special criminal facilitation liability, simply based on a finding of
knowledge).
So, again, I'd agree with the Grokster bottom line -- I just think
that it was mistaken on the material contribution element.
References
1.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E9CE41F2E90CC8D788256EF400822372/$file/0355894.pdf?openelement
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