Samuelson on Grokster: Speak No Evil, Hear No Evil

Pamela Samuelson analyzes the Grokster decision in her forthcoming article for CACM's Legally Speaking column (Oct. 2005): Did MGM Really Win the Grokster Case? [PDF].

Her answer to the title, or at least part of it, is in the second paragraph:

MGM didn’t really want to win Grokster on an active inducement theory. It has wary of this theory that it didn’t actively pursue the theory in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought that the Supreme Court would be so shocked by the exceptionally large volume of unauthorized up- and downloading of copyrighted sound recordings and movies with the aid of p2p technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging disruptive technologies, such as p2p software. Viewed in this light, MGM actually lost the case for which it was fighting. The copyright industry’s legal toolkit to challenge developers of p2p file-sharing technologies is only marginally greater now than before the Supreme Court decided the case.

And Samuelson isn't all that worried about Grokster's inducement test for (P2P) technology developers:

MGM is concerned that developers of p2p software will articulate a plausible substantial non-infringing use, such as downloading open source software, for their technologies and will be careful not to say anything that directly encourages infringing uses. MGM believes that they will nonetheless secretly intend to benefit from infringing uses that ensue. If there are no overt acts of inducement and no proof of specific intent to induce infringement, and if the Sony safe harbor continues to shield technology developers from contributory liability, MGM will find itself on the losing side of challenges to technology developers for infringing acts of their users. That is why MGM didn’t really want to win the Grokster case on this theory.

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