Grokster and Bongs

One issue that Doug Lichtman’s post raises is to what extent can P2P networks tell consumers that infringing activities are occurring without doing so explicitly enough to engender liability under Grokster?  Obviously, when companies have to hide their real messages in advertisements, unperceptive consumers are lost.  But perceptive and savvy consumers will still get the message.  I’m reminded of my college days when many shops sold marijuana bongs as tobacco pipes.  Given the user population of P2P networks, I think we are dealing with a savvy bunch who will get the message, regardless of how clever, tortured, or indirect P2P advertisements become in the future.

Comments

[Bryce Pilz]

It is interesting to note that the issue of what type of "intent" must be shown in order to prove active inducement is far from settled in the context of patent law (which Souter relies upon in applying that theory in Grokster). Courts are still grappling with whether a patentee must prove an intent to induce the infringement, or merely intent to induce the acts that constitute the infringement. See MercExchange, LLC v. eBay, Inc., 401 F.3d 1323,1332 (Fed.Cir. 2005). If courts construing Grokster adopt the former approach, then it will be quite easy for file sharing companies to avoid liability under the Grokster - Intentional Inducement theory, and liability will once again rest on the outcome of the dispute between Breyer and Ginsburg's concurrences.

[Bryce Pilz]

It is interesting to note that the issue of what type of "intent" must be shown in order to prove active inducement is far from settled in the context of patent law (which Souter relies upon in applying that theory in Grokster). Courts are still grappling with whether a patentee must prove an intent to induce the infringement, or merely intent to induce the acts that constitute the infringement. See MercExchange, LLC v. eBay, Inc., 401 F.3d 1323,1332 (Fed.Cir. 2005). If courts construing Grokster adopt the former approach, then it will be quite easy for file sharing companies to avoid liability under the Grokster - Intentional Inducement theory, and liability will once again rest on the outcome of the dispute between Breyer and Ginsburg's concurrences.