Grokster was argued in the Supreme Court today. The issues are tough, and the Justices amused themselves tossing curve balls at all the attorneys, not to mention sliders and a knuckler or two.

One wicked fastball came from Justice Kennedy, who responded to the argument that technological entrepreneurs need maximum freedom by asking (this is paraphrase): "So this means they should be able to use expropriated property as part of the start-up capital for their investment?"

Predicting the outcome of Supreme Court cases is folly, but my guess would be that neither side will have its prayers fully answered.

Grokster would like to have liability attach only if a business engages in the most blatant inducement of infringement. The Court will reject this, ruling that dependence on infringement combined with willful blindness is sufficient, but both those principles will need substantial interpretation in the lower courts.

At the other extreme, the content industries would like liability to attach if a business is used primarily for infringement. The Court will reject this as well, holding that some more active involvement is required.

The one certainty is that the struggle will continue.

posted by James DeLong @ 1:34 PM | Internet: P2P, Search Engines...

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