The Supreme Court today announced their opinion reversing a summary judgment for Grokster. I'm not displeased with the outcome. They made no reference to Aimster's willful blindness doctrine (which I thought should control the case), but came to a similar conclusion, finding the demonstrated intent of the defendants to be the key to their determination. As I stated back in March, consideration of intent is a necessary addition to Sony without which Sony is easily gamed and unmanageable. Here it was clear by the defendants' actions in aggressively recruiting Napster users and promoting infringing material available on their networks (actions that were curiously absent from the discussion in the 9th Circuit decision) that it was their objective to profit from the infringment of copyrights. Sony could not stand if it was read to protect such actions.
One of the most interesting questions of the case, whether Grokster and Morpheus had substantial noninfringing uses, was not decided by the Court and was argued at length in the concurrences. Justice Ginsburg (joined by Rehnquist and Kennedy) wrote a concurrence arguing that they did not have a substantial noninfringing use, while Justice Breyer (joined by O'Connor and Stevens) argued that they did have substantial noninfringing uses. I agree with Breyer's arguments for a low bar on substantial noninfringing uses, particularly in conjunction with consideration of intent as in this case and Aimster. To have a high bar for substantial noninfringing uses that sets some sort of a cutoff based on the percentages of use creates a real problem for developers of new technologies who cannot accurately predict how exactly their technologies will be used. There would be a definite chilling effect on technological innovation. Policing intent should provide a sufficient avenue for nailing bad actors.