Two Thoughts on MGM v. Grokster

Although a lot of digital ink has already been spilt in the run up to oral arguments in MGM v. Grokster, there are still two issues that bear mention.

Willful Blindness
The Ninth and Seventh Circuits' disagreement over the correct interpretation of Sony's "substantial noninfringing use" standard has already been pretty well covered elsewhere. But another interesting question that gets less press is whether the Court will rule on the issue of willful blindness. While guest blogging for Larry Lessig last August, Tim Wu predicted that the Supreme Court would grant cert partly because of the disagreement over the relevance of willful blindness to secondary copyright liability. In Aimster, Judge Posner wrote "[w]illful blindness is knowledge, in copyright law . . . as it is in the law generally," while the Ninth Circuit declared "there is no separate 'blind eye' theory . . . of vicarious liability." Who the Court sides with (if it reaches this question) will determine how much room courts will have to look into suspect motives of potential secondary infringers.

Legality of Peer-to-Peer Architecture
The most entertaining amicus brief for either side is unquestionably the one by Eben Moglen on behalf of Grokster (for example, stating the question presented as "Did the Court of Appeals rightly conclude that the doctrine of contributory copyright infringement cannot be used to prohibit the Internet?" and noting that "[i]n referring to this as a very important case, petitioners characteristically mistake self-importance for the real thing."). The brief's attempt to shock, however, is not without a point. Overlooked in much of the discussion of Grokster's dubious motives and possible inducement to infringement is the fact that MGM et al. argue for an interpretation of secondary liability that implicates all true peer-to-peer systems, no matter how innocently intentioned or general in purpose. Any digital system that lacks a means of central control would be per se illegitimate and sanctioned by the imposition of blanket copyright liability for infringing uses by third parties. Win or lose, Grokster's fate is fairly unimportant in comparison to this larger issue.