June 28, 2006
Happy (?) Anniversary, Grokster v. MGM
By Eric Goldman
Yesterday was the 1 year anniversary of the Grokster Supreme Court ruling. This opinion was one of the most hotly anticipated Supreme Court opinions relating to copyrights (and perhaps any subject matter) of the last decade or two, and the air was filled (both before and after the opinion was issued) with lots of predictions--many of them dire--about the future of technological innovation, content dissemination and our society generally.
So, in the past year since Grokster, what has changed? Arguably, nothing. People still get digital content through a combination of paid offerings and free file sharing, which continues to be a major online activity. Content owners are still suing file sharers and demanding new laws from Congress. Entrepreneurs are still looking for ways to mediate relationships between content owners and consumers.
As for the opinion's precedential impact, I did a search for the word "Grokster" in Westlaw's federal database and came up with less than 15 opinions citing the Supreme Court opinion. From a cursory scan of these opinions, I'd say that, thus far, Grokster hasn't really done much to reshape the law.
Of course, it's impossible to fully gauge the changes due to Grokster. Grokster could be reshaping the law in unreported decisions or settlements. And if the Grokster critics are right, some technological innovation has been dissuaded by the opinion, and we'll never know what we’re not getting. Finally, it's only been 1 year, and it often takes a while for the impact of precedent to be fully realized.
Nevertheless, I'm cautiously predicting that the Grokster opinion was the great Non-Event of Summer 2005. We had a lot of punditry fun last summer, and we got a good teaching case (although I wonder if we'll still teach the case 5 years from now, or if it will be superseded by more interesting/important cases). And a few individuals (mostly notably Grokster itself, which is out of the file sharing business) have felt the case's impact. But overall, there's precious little evidence to suggest that the Grokster opinion was a watershed event--which, I think, is the very best outcome that we could expect in a situation where the defendants lost at the Supreme Court.
UPDATE: John Ottaviani wrote me with the following comment on this post:
"I think you're being a little premature on Grokster (or just being provocative to generate discussion/traffic). Grokster did affirm the "substantial non-infringing use" principle, which is used daily by attorneys counselling clients on bringng technology to market. Little of this finds its way into cases (see, e.g. Napster, Grokster), but if the SUp Ct. had wiped out that theory it would have made our counselling much more difficult.
It's too early to tell if the inducement theory will have an impact. Grokster presented a rather unique set of facts."