GROKSTER AT LAST

The US Supreme Court has provided its long awaited decision in MGM v Grokster. The court has held that providers of filesharing software COULD be liable for infringing downloading of material using that software.


The key question was whether supply of the Grokster software, which enabled music, movies etc to be downloaded, constituted an inducement of copyright infringement; or whether, in line with previous cases, it did not, as the software could be used for non infringing uses. The latter outcome would have meant that copyright owners would have needed to attack those using the software for infringing purposes, rather than at least trying to attack the "problem" at source (or at least in terms of some supplier).

Although likely to give rise to lots of public comment, from a legal perspective there is little change from the existing law from Sony/Betamax. There too it was possible to be liable for inducing infringement - the question was whether, on the facts, this was done. On the facts here, the court found evidence that the software was intended to be used for infringing purposes: so for the risk averse and risk managers, simply a question of carefully drafted advertising?

For others, the question is unlikely to be allowed to go away - the fight may go on....