For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Tuesday, 28 June 2005

GRAPPLING WITH GROKSTER


A more detailed analysis by the IPKat of the majority judgment in today’s Supreme Court Grokster decision.

Grokster is a file-sharing network that allows users to share electronic files (including music files) through peer-to-peer networks without having to go through central servers. Such P2P networks can be used to share any type of digital file, but they have been used in particular for sharing copyright-protected music and video files without the authorisation of the copyright holder.

The action

MGM and a number of other copyright holders brought an action for secondary copyright infringement against Grokster. The Court of Appeals of the Ninth Circuit granted summary judgment in Grokster’s favour, finding no arguable case of secondary infringement. While there was no doubt that users of the network were infringing, it was found that Grokster did not infringe, based on the Sony v Universal Studios case. In Sony the makers of Betamax video recorders were found not to have secondarily infringed because their machines could be used for non-infringing purposes and so did not lead to secondary infringement unless its maker knew of specific instances of infringement and failed to act on that knowledge.

Making a balance

The Supreme Court began by acknowledging that there was a balance to be made – according to the court “The more artistic protection is favoured, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.” There were strong arguments in favour of imposing indirect liability here, based on the vast number of infringing downloads and the impossibility of direct enforcement against the individual direct infringers.

Contributory infringement (a common law wrong) was said to consist of intentionally inducing or encouraging direct infringement. The Sony case was described as a reflection of patent law’s “staple article of commerce” doctrine. This doctrine holds that an article will not infringe a patent if it is suitable for use in other ways. Thus, Sony’s video recorders did not infringe copyright because they could be used for time-shifting (recording programmes to be watched later at the owner’s convenience) which was legal and therefore constituted a commercially significant non-infringing use. The purpose of the “staple article of commerce” doctrine is that there is a legitimate public interest in allowing products that can be used in a lawful way to be available.

Reading Sony too widely

The Ninth Circuit had read Sony too widely. Sony did not say that secondary infringement was an impossibility where a product is capable of a substantial lawful use. However, according to the Supreme Court, Sony only laid down this rule where liability was being placed on the maker of the means of infringement by imputing an intention to enable infringement based solely on the design of the means of infringement. Others forms of secondary infringement were unaffected by Sony.

The relevance of the defendant's intention

One example of another form of secondary infringement is where there is direct evidence of an intent to induce or encourage direct infringement. There must be a purposeful, culpable expression of intent to induce infringement and this must be accompanied by conduct. Such an unlawful purpose prevents a defendant from claiming the protection of the “staple article” rule. What is crucial is that (i) it is shown that active steps were taking with the purpose of bringing about the infringing acts and (ii) it is shown that infringing acts took place using the method for infringement distributed. It is not crucial to show that the message to infringe was sent out to the direct infringers, but such a showing will be helpful.

Here three main things demonstrated Grokster’s unlawful purpose:

* By promoting itself as a successor to Napster (the P2P system ruled to be infringing in a previous case), the company showed itself to be aiming a satisfying a known source of demand for copyright infringement. This could be seen both from internal business-plan documents and the way in which the site presented itself.

* Grokster didn’t develop filtering tools or other mechanisms to limit infringement through their software.

* Commercially, Grokster’s scheme only made sense if it could make money through advertising. The more the software was used, the greater the advertising income was. The software was used the most for top-40 hits, which could only be disseminated through Grokster in an infringing fashion. This though was said to be a weaker factor.
As well as intent to bring about infringement, actual direct infringement had to be shown. There was no shortage of evidence that this had taken place.

What next?

The case has now been remanded to the lower court for a ruling based on the principles set out by the Supreme Court.

According to the IPKat

The IPKat isn’t used to all this economic-style analysis dictating the direction of cases and he’s not sure how good it is for the predictability of the law (although in this case he wonders if the Supreme Court’s legal framework that it put in place here might well have stood up without it). By focusing on secondary infringement based on an intent to induce infringement, the Supreme Court has neatly side-stepped the issue of the limits of the rule that there is no secondary infringement where the method for infringement also has a legitimate use. In particular, the court has avoided answering the question of what percentage of the use has to be legitimate in order for a product to avoid being seen as a tool of secondary infringement.

The IPKat also points out that this is an example of how procedure and "hard law" come together to influence the outcome of a case. Without strong discovery, MGM would have been in a far weaker position when it came to proving that Grokster's intention was to induce infringement.

47 comments:

Marketing man said...

You have a great blog here! I will be sure to book mark you.
I have a business opportunity lead site. It pretty much covers business opportunity lead related stuff. Check it out if you get time :-)

Mike said...

make money at home
is easy. make money at home

Memcco said...

If any of your bloggers are interested in P2P Software for free music and movie downloading, go see my P2P related site. The Top 12 P2P Software Links are provided

Swingin80 said...

Cool blog you have. I have a work from home employment related site. Check it out if you get a chance. The URL is work from home employment

Anonymous said...

Nice site i came here searching for uk affiliate marketing program and was looking for other people who are interested in uk affiliate marketing program
You might be interested in uk affiliate marketing program

Trog said...

Hi Iwas just blogsurfing and found your blog I think blogs are a great idea keep it up .. I also have started a blog and intend to make more .. I also have a website that sells very cheap software .. cheap computer software
I just started up so be my guest and take a look you may find something you need ..cheap computer software

Steve Smith said...

Good blog. Most impressed. Will be visiting again. While I'm here thought If you are
interested, check out my home based business related site. It's filled with money making ideas
and you may find something of interest.

Shia Source said...

Hi :)

You have a great blog! Keep up the good work! I'll be sure to visit regularly.

Please visit my site if you get some time: Shia

De Post Man said...

Informative post. Take a look at my credit site ( http://mortgage.27days27gurus.com/ ) f you can. Thanks free credit report online

Greater Spire said...

Vacations
by: make money from the internet

While Paris, England, or Germany offers excitement,
they also cost money to visit. Unfortunately, people
on a regular basis forget about the United States and
even the very state in which they live. One man had
lived in Arizona his entire life. At age 50, when asked
by a friend what the Grand Canyon was like, he was unable
to answer because he had never been there. The next time
you get ready to plan your family vacation, look around
where you live and consider an exciting road trip that
will not only be educating but cost effective. A vacation
does not have to be expensive to be fun and memorable.

make money from the internet

Anonymous said...

Hey, you have a great blog here! I'm definitely going to bookmark you!
I have a info products site. It pretty much covers info selling related stuff.
Come and check it out if you get time :-)

Steve Smith said...

Caught your blog by accident. Really impressed. Just thought I'd let you know
about a site where you can earn an extra income from your website. You might
find it worthwhile to check it out.home based business

xrayrob said...

Nice blog... I did a search for free ringtone and I found your blog. I am giving away free software on my site. You should check it out. The link is Click Here

Pro Free Life said...

...anyone looking for information products to sell? Check out Resell Right Products or eBook Lovers. Thanks!

websoftware said...

 Hi: Just came across your blog. Interesting post and good looking site.

We recently set up a website offering totally free blog and website awards for sites with legal & legal related exceptional content.

No, we are NOT directly selling anything. If you would like to enhance your blog/web site, visit our web site award program web site. blog/website with one of our classy website award graphics! If you are interested, here is the link: http://www.web-site-award-winning.com
**web site award program**

Anonymous said...

Yo, This blog is pretty neat. You should check out mine sometime. It pretty much covers make cash now related stuff.

Admin said...

Great Video Game blog, thanks for letting me post a message. Great Job with your blog.

Thanks
game video wallpaper

Johnny said...

Every online business need free traffic. This free traffic handbook is very update and helpful.

TWPAdmin said...

I enjoyed reading your blog. There is a lot of useful information about automotive design site turnkey web in it. We offer Turnkey Websites and Reliable Hosting. We also provide a blogging service that will help your site get indexed fast and keep the search engines visiting your site. Click here for more information about automotive design site turnkey web.
Thank you
TWP Admin

Anonymous said...

GlobalGasPrice.comI came across www.globalgasprice.com which tells you all the gas prices in your area by zip. Gasoline prices change frequently and prices within a few blocks varies up to 20 percent. It is important to be able locate the gas station with the lowest priced fuel. Our sites allow the you check the gas prices online before you pay too much.
We designed the site with you in mind. We all know how costly gas is. Finding the lowest gas station is important as it could save up to $300 a month.

Anonymous said...

Great home internet business opportunity blog.
Hey if I can help, let me know...
If you ever need help or info. visit
home internet business opportunity
Have a blessed day.

nbim said...

Hi, I was searching for info on easy ways to make money from my home and bumped into your site. Obviously, your site is not about easy ways to make money from my home, but I hope you wont mind me adding it to my favorites.

rushprnews said...

Hi, great blog! Let's talk Marketing and PR. Please feel free to visit my blog too at
, RushPRnews Daily Gazette, Open-Call for Writers.
My website is** RushPRnews press release services, distribution and free web posting** . Cordially, Anne Laszlo-Howard

Gift Ideas Guide said...

I commend your post on this one of a kind blog.

I hope you find my site useful containing child christmas operation information and content.

Anonymous said...

To stay ahead of the market in adsfree
you must be fresh and inovative. So thanks
for the info. I have a site about adsfree also. Keep up the good blogging and stop
to get some new ideas at my site if you like.

aajkal19 said...

The site information helped me to get best quote Term Life Insurance Quote

Dan said...

Good blog but without post card advertising you have little chance of selling anything.

Anonymous said...

Hi,

I have some really good websites below that can help you with credit repair and legal law forms.
You can also check out the news section at "Latest Legal Articles"

Preparing legal documents has never been easier
with our library of forms, agreements, and checklists. It is valuable to small and growing businesses and entrepreneurs.

Have you ever needed a legal form but didn't know where to get one? Have you ever wanted to cover yourself in a legal agreement or make sure that those you love are protected? FastLawForms.com is an easy to use online legal forms provider that can and will save you thousands of dollars of lawyer's fees every year.
www.fastlawforms.com

Repair your own credit , Credit Repair is an ongoing matter for many consumers. Consumers have paid up to $500 or more to credit repair companies who follow this same process to remove their credit errors. Without credit you can't get a car, travel, loan money, or even get mortgage.

www.creditrepair.fastlawforms.com

Have you been victimized by credit repair companies? Many companies promise or guarantee to clean up your credit report so you can get a car loan, a home mortgage, insurance, etc. In reality, they can't deliver what they promise. You pay them hundreds dollars in fees and these companies do nothing to improve your credit. Many of them just disappear.

Everything a credit repair companies can do for you, you can do for yourself at no cost. No one can do a better job in repairing your own credit as you can. You are the only one responsible to make sure your credit report is accurate. Our guide will help you every step of the way.

www.creditrepair.fastlawforms.com

If your application for credit is denied due to information supplied by a credit bureau, the company you applied to must be liable to provide you with that credit bureau's contact information. Furthermore you are entitled to a free copy of your credit report if you've been denied credit within the last 60 days

Disputing credit mistakes or outdated items is free. Just ask the credit reporting agency for a dispute form or submit your dispute in writing, attach any supporting documentation. Always send them a copy instead of the original

www.creditrepair.fastlawforms.com Team


Also checkout our sponsors at: www.paidtodrive.co.uk - Get Paid to Drive in UK ---- Only website on the internet that offers paid to drive companies exclusively in United Kingdom

Home Based Business Opportunity said...

Stunning home based business weblog.
So many ideas, tips, and insite.
Well thanks and if you have some time
stop in at my home based business
website.

Anonymous said...

Imagine the power of tens of thousands of other web sites being able to easily

TWPAdmin said...

I enjoyed reading your blog. There is a lot of useful information about free turnkey web site in it. We offer Turnkey Websites and Reliable Hosting. We also provide a blogging service that will help your site get indexed fast and keep the search engines visiting your site. Click here for more information about free turnkey web site.
Thank you
TWP Admin

Infactahost.com said...

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a reciprocal link site/blog. It pretty much covers reciprocal link related stuff.

Come and check it out if you get time :-)

Anonymous said...

Wow, I really like this one. I have a website that talks mostly about nikon d100

nikon d100
News

You should check it out sometime.

Goodman441 said...

Hello and thank you for welcoming me to this make money with adsense blog. As a fellow webmaster i am always in need of good traffic. Please visit my site at: www.ickaboo.com when you have a chance.

Anonymous said...

I discuss this topic daily myself. I also have a website that talks about big fast make money related things. Go check it out if you get a chance.

chxiao said...

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a http://www.start-job.com/s-estrin d
.html site/blog. It pretty much covers estrin d
related stuff.
http://www.start-job.com/s-estrin d
.html estrin d


http://www.start-job.com/n-estrin d
.html News estrin d

Come and check it out if you get time :-)

Anonymous said...

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a reliable web hosting site/blog. It pretty much covers reliable web hosting related stuff.

Come and check it out if you get time :-)

Brian said...

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a advertising magnet site/blog. It pretty much covers advertising magnet related stuff.

Come and check it out if you get time :-)

Anonymous said...

I love your houston texan ticket blog! Check out my houston texan ticket forum for lots of great houston texan ticket info.

Plasma TElevision Center said...

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a Plasma Television site/blog. It pretty much covers Plasma Television related stuff.

Come and check it out if you get time :-)

The Computer Guys said...

Yo, you have a Terrific blog here! Lots of content means more readers, more readers means more Sales!
I'm definitely going to bookmark you!
I have a make my computer go fastermake my computer go faster site/blog. It pretty much covers make my computer go faster Problems with your Windows Xp Computing !
Come and check it out if you get time We are just a Click Away ! :-)

Anonymous said...

GROW IT YOURSELF!

Anonymous said...

workfromfromhomebiz.net

mwcart said...

Hello. Do you know the you can Search Engine Optimization Specialist
online. The internet is the perfect place to find Search Engine Optimization Specialist
. Great blog, keep up the good work.

Johnny said...

Every online business need free traffic. This free traffic handbook is very update and helpful.

Mortgage Tip said...

Hey, you have a great blog here! I'm definitely going to bookmark you!
I have a **bad credit loans** site/blog. It pretty much covers ##Mortgage loan advice## related stuff.
Come and check it out if you get time :-)

sharetipsinfo said...

Well you can make money from home by investing it in stock market with our recommendations...So jump in
Regards
www.sharetipsinfo.com team

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':