Grokster: The Day After

After having had time to reflect, I believe that the Grokster case came out the way it had to, since the theory put forth by the court is so seductive. After all, who would rule that a company that intends to promote copyright infringement and promotes copyright infringement can’t be punished because its product might also be used for something else? This seductive theory of liability is also enshrined in the anti-circumvention provisions of the DMCA which prohibit the distribution of tools that the distributor or his agent also markets for use in circumventing a technological measure that effectively controls access to a copyrighted work. 17 USC 1201(a)(2)(C).

But in practice, this decision leads to a lot of uncertainty and risk, much of which will be borne by the independent creator, programmer or inventor. Many non-litigators think intent is hard to prove. After all, how can you know what’s in another person’s mind? But those who’ve litigated intent issues before know that its not hard at all, and the determination of ill-intent is often based on slight evidence in addition to the criminal act. Further, the quality and type of that evidence ought to make people nervous; Whether someone has the mark of a “legitimate” inventor or business, or a hacker. Tee-shirt slogans. Books in the workshop. Marketing materials. Slogans. Logos. Product names. Evasive responses when accused of wrong-doing. The Supreme Court even gets it wrong right in the Grokster case. In the very same opinion that says that the design of the product is not evidence of illegal intent if there are substantial non-infringing uses, the court points to the design choices of interoperability and failure to filter as evidence of bad intent. It also doesn’t like the “-ster” name. If a judge’s (or more likely a jury’s) interpretation of what this evidence might say about an inventor’s state of mind is difference between today and the next insanely great thing, I think we might have a lot fewer great things.