Picker: Grokster and Guns

Eugene Volokh has a post picking up on one of Rebecca Tushnet’s posts from SCOTUSblog yesterday. The basic question is what does Grokster mean for manufacturers of other products, particularly guns and alcohol. I have a forthcoming paper in a Case Western symposium on Sony that discusses this, distinguishing networked products such as p2p software, iPod and TiVo from guns. Here is what I say specifically about guns:

The ability to exercise control after the fact is the key point that distinguishes the networked product from the conventional product. So, to take one prominent point of comparison, gun manufacturers exercise little control over their products once sold. When I point a gun at someone, Smith & Wesson can’t tell whether I am doing so illegally or legally in self-defense. In contrast, for the networked product, the producer may be able to separate out—to filter out—legitimate and illegitimate uses.

Comments

[Brett Frischmann]

Perhaps one way to view the Court's decision is to think of active inducement as analogous to an intentional tort; inducement is the wrongful act in itself. The focus is on the manufacturer's conduct in relation to its customers and not on the product itself - not on its capabilities, not on its design.

If manufacturers and/or distributors (of guns or p2p software) actively and intentionally encourage (induce) particular uses of their products and those uses are unlawful, then the manufacturers and/or distributors may be held liable.

While I appreciate Randy's point that manufacturers of networked products may have the capacity to supervise/manage/control users (i.e., it is less costly to exercise such capacity in the p2p context than in the gun context), failing to exercise that capacity (regardless of the costs involved) seems to fall quite short of an intentional tort in terms of culpability. A negligence-type duty might give rise to the sort of liability Randy is looking for, but that is not the direction the Court went (which is a good thing in my opinion).

Of course, as other posts have indicated, it is difficult to know just what will suffice as evidence of intent to induce. It might be helpful to pull out the Restatement of Torts to look at section 8A and the other sections on intent.