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.”