Solum: Footnote 12 in Grokster

Because Grokster was decided on an inducement theory, the crucial question--from a practical point of view--is what constitutes sufficient evidence of inducement. In particular, is evidence of "intent" required. If so, then "legal engineering" (see post below) can circumvent liability. If not, then things would get much more interesting. So consider this passage from Justice Souter's opinion:

While the Ninth Circuit treated the defendants’ failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users’ activity, we think this evidence underscores Grokster’s and StreamCast’s intentional facilitation of their users’ infringement. 12

And what is in Footnote 12?

12 Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.

Once again, the "beef" is in the footnote!