Advanced Copyright Issues on the Internet - Fenwick & West LLP

Whether the Seventh Circuit’s approach to the Sony safe harbor in the Aimster case iscorrect or not. None of the three opinions in Grokster expressly address whether theAimster approach erred in various aspects. The majority opinion cites the Aimster caseonly for the factual proposition that it may be impossible to enforce rights in a protectedwork effectively against all direct infringers, making the only practical alternative goingagainst the distributor of the copying device for secondary liability. 1487 JusticeGinsburg’s concurring opinion merely notes the conflict between the Aimster andNapster decisions and states only that all members of the Court agree that the NinthCircuit misapplied Sony, at least to the extent it read that decision to limit secondaryliability to a “hardly-ever category.” 1488 Justice Breyer’s concurring opinion citesAimster only for the proposition that there is but a single appellate decision to dateinterpreting Sony more strictly than Justice Breyer would. 1489 Nevertheless, it seemsthat, to the extent the Aimster decision suggests that failure to affirmatively preventinfringing uses could by itself, without other evidence of unlawful intent, subject adefendant to liability, it is plainly inconsistent with the Grokster majority opinion. 1490 Inaddition, Aimster’s general cost/benefit balancing approach to the Sony safe harbor maynot survive the majority opinion either. 1491Although the Grokster case is one of the most important copyright decisions to come outof the Supreme Court, it clearly left much work to be done by the lower courts, and perhaps theSupreme Court itself in future copyright decisions, to work out the boundaries of the copyrightinducement doctrine and the Sony safe harbor.(6) The Grokster Decision on Remand(i)The Ruling on LiabilityDefendant Grokster settled with the plaintiffs shortly after the Supreme Court’s decision.On remand from the Supreme Court, the district court granted the plaintiffs’ motion for summaryjudgment as to liability of defendants StreamCast and Sharman for inducing copyrightinfringement. 1492 Not surprisingly, the district court’s ruling essentially tracked the Supreme1487 Id. at 2776.1488 Id. at 2784 n.1 (Ginsburg, J., concurring).1489 Id. at 2790 (Breyer, J., concurring).1490 “Of course, in the absence of other evidence of intent, a court would be unable to find contributoryinfringement liability merely based on a failure to take affirmative steps to prevent infringement, if the deviceotherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safeharbor.” Id. at 2781 n.12 (Souter, J.).1491 See Mitchell Zimmerman, “Does Aimster Survive Grokster,” Cyberspace Lawyer, Dec. 2005, at 1 (noting thatAimster insisted that “balancing of costs and benefits is necessary,” even in cases “in which substantialnoninfringing uses, present or prospective, are demonstrated, whereas Grokster says instead that “the [Sony]doctrine absolves the equivocal conduct of selling an item with substantial lawful as well as unlawful uses …”).Mr. Zimmerman’s article notes several other ways in which the Grokster majority opinion may sub silentiodisapprove of Aimster.1492 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, 454 F. Supp. 2d 966 (C.D. Cal. 2006).- 329 -