Lichtman: Hollow Victory in Grokster

MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability.

That is not the standard I was hoping for. As I wrote in the amicus brief, I would have allowed liability to be based exclusively on objective evidence, for example a party's failure to alter its technology in a way that would significantly reduce infringing behavior without significantly interfering with legitimate.

The Court closed the door on this sort of inquiry, however. As the opinion makes clear, evidence of unreasonable product design can be considered only if there is also smoking-gun evidence of intent. Indeed, even outlandish design desicions are off limits without the relevant precursor.

Surely the Court realizes that well-advised bad actors rarely leave smoking guns lying about. Hence the victory here looks hollow, and in my view the legal rule seems poorly crafted.

Comments

[David Manheim]

I think that the point made by the court may have been missed; until the concept, and reality, of such technologies is furthered, it is premature for the court to make any long term decisions. The court said, to paraphrase; "Yes, these companies are wrong, but we're not sure how much more they would have needed to be OK, so we'll pass on the question."

It is extremely unlikely that this will be the last case that goes to the supreme court on filesharing issues, so they have deferred the issue until it is made moot by the continued rush of users to the various services of dubious legality for obviously non-legal purposes.

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