At a Grokster forum this afternoon (graciously hosted by GW), the power of the Nimmer copyright treatise was on display. There is really no caselaw on contributory copyright liability for “inducement.” In 1911, Justice Holmes said that “the most innocent objects may be used for unlawful purposes.” But the case in which he said this wasn't about inducement — it was about direct infringement. Since then courts really haven't discussed “inducement” in the copyright context, except as part of boilerplate lists.
Tom Perrelli of Jenner & Block is a very skilled and thoughtful lawyer. He told us this afternoon that the Nimmer treatise describes two branches of contributory liability in copyright. One branch covers active encouragement/inducement, and the other covers distribution of products. So all the talk about inducement during today's argument has ample support — from the Nimmer treatise. Cindy Cohn of EFF said at one point during the discussion [paraphrasing]: “We discovered a new branch of copyright infringement liability today. It must be because it's cherry blossom season in Washington.”
Why do we depend so much on copyright treatises? I heard a talk by Ann Bartow last week about the power of the Nimmer treatise (among other treatises), and Perrelli's comment today seemed to bring this back around.
One of Perrelli's central points this afternoon was the following question: “Is this [Grokster] the kind of innovation we should be fostering?” That's the content industry's goal. Sure, we're all for innovation. But shouldn't we be careful just what kind of innovation we allow? Hmm? (As readers will anticipate, that last “Hmm” was intended to be humorous.)
Perrelli also makes the point that the “rule” of Sony isn't all that clear. If it provides such strong protection for innovation, why has there been so much litigation over what it means? He noted that petitioners were pleased that the Court spent so little time focusing on the dominant aspects of respondents' arguments — parsing Sony and being told to go to Congress — and so much time swimming in the difficulty of establishing what the right rule for contributory liability should be. Another panelist piped up and said that it's a mistake to think that the business community even knows what the Sony rule is, so how could they possibly be relying on it? (Hmm.)
I'm looking forward to the blogging about the argument. The Court did not find this an easy case, either procedurally (“bizarre!”) or substantively (“what about the iPod?”). No one is predicting a clear win for either side.
