Here's where the bad news starts. "The Supreme Court basically created another way for the creator of new technology to be liable for copyright infringement," he says. "If the creator intended to induce copyright infringement, then the creator can also be found liable. To quote the court: 'One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.'"
After today's decision, there are two potential pitfalls for creators of new technology, according to Ghosh. "The first, under Sony, is to create technology that because of its design and uses has primarily infringing uses," he says. "The second, under Grokster, is to create technology with the intent to induce infringement by third parties. The Sony standard focuses on the design of the technology, the Grokster standard on the intent of the creator. Even if the design of technology may have a lot of non-infringing uses—as Grokster and Streamcast allegedly did—the creator of new technology still can be found liable if his purpose in creating the technology was to permit copyright infringement.
In Sony, the court borrowed from the law on contributory infringement in patent law; in Grokster, the court borrowed from patent law's rules about inducement. "In its defense," Ghosh added, [the Grokster] opinion, totaling more than 50 pages in length, did show sensitivity to the arguments about technological innovation that were raised in the litigation. However, the decision also complicates copyright law by creating a new—and questionable—legal standard. Only future cases will tell how this standard will affect P2P and other technologies."
From the University at Buffalo Law School Newspaper, The Opinion
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