August 08, 2005
Implications of Grokster Presentation
By John Ottaviani
Here are the slides from a presentation I gave Saturday on the "Implications of Grokster" at the American Bar Association meeting in Chicago.
The more interesting part of the presentation is toward the end, discussing "what we know" and "what we don't know" 39 days after the decision was handed down.
What we know: (1) Sony is still good law; (2) we have a new (or at least revitalized) inducement theory of liability for copyright infringement, borrowed from patent law; (3) peer to peer technology itself is not illegal; (4) the legal battles over file-sharing rage on; (5) new battlegrounds are forming (bittorrent, Slingbox, darknets); (6) and stealing is still wrong.
What we don't know: (1) why the illegal downloading conduct persists despite widespread knowledge that the conduct is illegal; (2) how much non-infringing use is "substantial"; (3) what does "right and ability to supervise" mean? and (4) how do we advise clients in advance what does and does not constitute "inducement."
I would say the answer to the first "unanswered question" is pretty obvious: because they haven't been caught yet and free is still better than $.99 per track for a DRM'd file. People continue to download for the same reason people continue to speed and for the same reason people continue to ingest illicit drugs: because they can and they haven't gotten caught. Or because they can and doing so is more economically advantageous (even factoring in getting caught) than not doing it. Espicially with technologies such as BitTorrent, which is not-quite-anonymous but would take effort to to discover massive infringements, as a "part-time" infringer, it is far easier to go out and search for what I want, jump up on to BitTorrent for the 10 minutes it takes me to download a CD and then shut down my BitTorrent connection. So, until the **AA's can stop that activity, which they can't (there's always someone out there to hack the better mousetrap), there will always be SOME form of "piracy" (I put that in quotes because there could be some debate as to whether it is truly undesirable activity).
Posted by: Jeff at August 8, 2005 08:57 AM
John, I always thought that the Sony case only applied to contributory infringement, not vicarious infringement. Could you clarify how you think Sony applies to vicarious claims? Eric.
Posted by: Eric Goldman at August 8, 2005 11:11 AM