Diane Leenheer-Zimmerman on Grokster

Diane Leenheer-ZImmerman, New York University School of Law, has published “Daddy, Are We There Yet? Lost in Grokster-Land”, forthcoming in the New York University Journal of Legislation and Public Policy. Here is the abstract.

When the Supreme Court decided the Grokster case last June, it pretty much resolved the dispute as to the particular players in the case but it arguably did little to move toward any long-range resolution of the dispute over the downloading of copyrighted works. By adopting an inducement theory, and then reaching for any available shred of evidence to support it, however, the opinion may have added a few more problems to the mix. In particular, by referring disapprovingly to the failure of the defendants to use methods like filtering, and by finding support for inducement in the fact that the defendants’ incomes were positively related to the level infringing uses made by their users, the Court introduced the prospect of product producers and distributors being drawn into design wars comparable to those that have long raged in products liability cases, or finding themselves at risk simply for producing a product that is attractive to would-be infringers as well as to wholly legitimate users. The most certain prediction that can be made about Grokster, however, is that it will do nothing to achieve a stable resolution of the problems that animated the litigation. Two likely scenarios are proposed. One is that the decision will quickly be mooted by technological change, and will at most provide a roadmap for future versions of Grokster and StreamCast on how not to induce. The other is that it will invite so much and such confusing litigation over the meaning of inducement that the Sony balance will be indirectly upended and Congress or the Court will be forced to step back into the fray to protect technological innovation.

Download the entire paper from SSRN here.