Solum: The Grokster Concurrences

Six justices joined concurring opinions in Grokster. Ginsburg was joined by Rehnquist and Kennedy. Breyer was joined by Stevens and O'Connor. Ginsburg and Breyer disagree about the meaning of the Sony "substantial noninfring use" test, and that disagreement is potentially important to the future of P2P litigation, and hence to the future of copyright. What is the significance of these opinions? Here is a key passage from near the conclusion of Justice Ginsburg's concurrence:

In sum, when the record in this case was developed, there was evidence that Grokster’s and StreamCast’s products were, and had been for some time, overwhelmingly used to infringe, ante, at 4–6; App. 434–439, 476– 481, and that this infringement was the overwhelming source of revenue from the products, ante, at 8–9; 259 F. Supp. 2d, at 1043–1044. Fairly appraised, the evidence was insufficient to demonstrate, beyond genuine debate, a reasonable prospect that substantial or commercially significant noninfringing uses were likely to develop over time. On this record, the District Court should not have ruled dispositively on the contributory infringement charge by granting summary judgment to Grokster and StreamCast.

And here is a passage from Justice Breyer's opinion:

When measured against Sony’s underlying evidence and analysis, the evidence now before us shows that Grokster passes Sony’s test—that is, whether the company’s product is capable of substantial or commercially significant noninfringing uses.

And:

As in Sony, witnesses here explained the nature of the noninfringing files on Grokster’s network without detailed quantification. Those files include:
--Authorized copies of music by artists such as Wilco, Janis Ian, Pearl Jam, Dave Matthews, John Mayer, and others. . . . --Free electronic books and other works from various online publishers, including Project Gutenberg. . . . --Public domain and authorized software, such as WinZip 8.1. . . . --Licensed music videos and television and movie segments distributed via digital video packaging with the permission of the copyright holder. . . .

And Justice Breyer adds:

To be sure, in quantitative terms these uses account for only a small percentage of the total number of uses of Grokster’s product. But the same was true in Sony, which characterized the relatively limited authorized copying market as "substantial."

In other words, Ginsburg plus two disagrees with Breyer plus two about the meaning of the Sony "substantial noninfring use" standard. Ginsburg seems to endorse the idea that the standard is not met when the overwhelming majority of uses are infringing; Stevens disagrees with that proposition. The concurrences may indicate where the lines are drawn for the next wave of P2P litigation!

Comments

[Laura Heymann]

I think (as Lior Strahilevitz suggests) the debate between the concurrences is over what should be the metric of evaluation: current use or potential use.

Ginsburg et al. muddy the conceptual waters when they fault the lower courts for not "sharply distinguish[ing] between uses of Grokster's and StreamCast's software products (which this case is about) and uses of peer-to-peer technology generally (which this case is not about)." What exactly are "Grokster's and StreamCast's software products"? Given that they are not simply "peer-to-peer technology generally," and that there's not (as far as I'm aware) any significant technological difference between the technology the defendants offered and other types of P2P technology, I can think of only two options: peer-to-peer technology at a particular point in time (such that the product is unlawful now given the kinds of use but may not be later if the percentage of lawful uses grows), or peer-to-peer technology promoted in a particular way. Since the latter was the basis for the Court's inducement theory, Ginsburg seems to suggest that "Grokster's and StreamCast's software products" are the former. But if whether the technology is lawful or unlawful is based on the kinds and numbers of uses as of the time of the litigation (and not on future, potential use), then this case *is* about "uses of peer-to-peer technology generally," isn't it? If the Ginsburg concurrence had held sway, could any current distributor of P2P technology have claimed freedom from liability? Only those who could demonstrate no or low infringement by their particular user base (which seems to be an incoherent way to treat different offerings of the same technology)? Only those who have better predictive models about future uses of the technology?