A Few Notes from the Grokster Argument

The big issue that the Justices were wrestling with, it seemed to me, is what the standard ought to be for deciding whether services like Grokster can be secondarily liable for their users’ copyright infringement. The Justices did not sound especially satisfied with either MGM’s or the government’s answers to this question. MGM’s view was and is a little odd; their argument to the Court was that the legality of a technology should turn upon the type of business model the developer of that technology adopts to distribute it. On this view, Sony is off the hook because Sony is not a company that is primarily in the business of copyright infringement. But Grokster should be held accountable because they intentionally founded a business based expressly on encouraging infringement of copyright. It does not matter, in MGM’s view, whether the infringing use of Grokster’s system constitutes 90% or 10% of the total: because its whole business plan is geared around using the promise of infringing content to lure customers, it should be liable.