So the Supreme Court has ruled against P2P software company Grokster, requiring them to stand trial in a lower court to determine if they induced users to swap music illegally.

Most of the web is going wild, claiming that this means that any developer of P2P software can be sued for the copyright infringements of its users. In fact what the Supremes have stated is that if a P2P software developer induces users to share illegal software and/or media, then they can be held liable. Simply being aware of illegal usage is not grounds for liability. In fact a very informative round table discussion at the Wall Street Journal site points out that footnote 12 of the decision states:


Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony1 safe harbor.


So even if P2P software makers are aware of infringing usage, they don’t even have to stop it. What I am not sure of is what happens if they are asked to stop infringing usage, and do not – or are unable to – comply.

Contrary to a lot of the scare mongering going on, this seems like an eminently sensible decision. It’s hard to imagine Sony getting away with advertisements saying “Hey, use our tapes to copy movies for your friends!”, and likewise P2P software developers doing the same should be spanked. It will be interesting to see the final decision of the lower courts, with evidence against Grokster apparently revolving around their intentional marketing to ex-Napster users (Napster was ruled illegal); and emails helping users with video playback problems (of illegal videos obviously).

1The reference to Sony is in relation to the Sony-Betamax decision that absolved Sony of any responsibility for users pirating movies on their Betamax video casettes.

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