The Grokster Dead-End

Abstract

The MGM v. Grokster decision in 2005 left secondary copyright infringement in a state of uncertainty. Introducing a new theory of inducement created the confusion of a new test, with some worrying that the inducement standard was overbroad and would deter the development of valuable and perfectly legitimate software applications, and others complaining of the opposite problem that the test was impractical and that evidence of intent would generally be impossible to ascertain. In addition, the Court explicitly refused to address the capable of substantial noninfringing use test articulated in the Sony-Betamax case, which the Seventh and Ninth Circuits had interpreted differently. Instead, three justices wrote a separate opinion to agree with one interpretation while three justices supported the other interpretation.

Yet, even as the legal world struggles to reorient itself around Grokster and the new contours of secondary liability law, file-sharing technology has already moved on. In particular, two technologies - YouSendIt and BitTorrent - demonstrate a trend of disaggregation that is rapidly driving secondary liability remedies into a dead-end, as the courts become increasingly uncomfortable striking down technologies that approach the line where copyright interests no longer outweigh innovation interests.

In particular, if Napster represented a system with centralized discovery and centralized delivery of content, Grokster only decentralized the delivery element. Search functionality was still provided in a single application that could be downloaded and installed to the desktop. In contrast, YouSendIt has centralized the delivery element, providing centralized servers from which all downloads occur, but it has disaggregated the discovery element by providing obscure download links and no search functionality. Finally, BitTorrent disaggregates both discovery and delivery, as it represents a distributed file transfer technology similar to Grokster, but without the search application that made Grokster look reprehensible to the courts.

As this trend of disaggregation continues, copyright owners attempting to enforce secondary copyright infringement against these new technologies will find themselves running up against both practical and legal difficulties. Not only will it become even harder to track infringing activities, but the courts will become less willing to apply the legal rules in favor of copyright interests - as was evidenced by the Supreme Court's evasion of the Sony-Betamax test in Grokster.

Keywords: Grokster, copyright, file-sharing, P2P, peer-to-peer, BitTorrent, YouSendIt, secondary liability, indirect liability