The Court issued three opinions.

By 9-0, through Souter, it said that the issue is whether Grokster intentionally induced copyright infringement. In deciding this, a trial court should look at all the usual indicia by which intent is assessed, plus the facts that Grokster:

(1) Demonstrated a desire to fill the market left empty by the demise of Napster;

(2) Did not attempt to develop filtering tools or other mechanisms to discourage infringement;

(3) Adopted a business model that depended on infrigement; "this evidence alone would not justify an inference of unlawful intent, but viewed in the context of the entire record its import is clear."

On this view of the case, Sony, over which so much briefing ink and angst were spilled, is irrelevant. It did not concern a charge of deliberate inducement of liability.

Separate concurrences by Ginsburg and Breyer then exchanged fire over what Sony would mean if it were relevant.

Breyer, joined by Stevens and O'Connor, takes the hard line tech view that -- absent a demonstration of intent to affirmatively encourage infringement -- if a product is "capable of substantial or commercially significant noninfringing use," its purveyor cannot be held liable. Note also that coupling this view with the Court's note that business model evidence alone would not justify a finding of intentional inducement would give the tech industry a pretty good safe harbor.

Ginsburg, joined by Rehnquist and Kennedy, says "not so fast" on that interpretation of Sony. If the case comes back up, then we will have to think about it (but don't think you get that slider past me, Breyer!).

Souter, Thomas, and Scalia are crouched in the dugout, letting the Sony exchange go over their heads.

So the tech industry can be happy that Sony, whatever it means, still means it, and that at least three justices think it means much indeed.

But items (2) and (3) in the Court's opinion are very big deals. Neither the tech industry nor the communications providers wanted the Court to come anywhere near idea of an obligation to filter, or the idea of business models. The inclusion of these in the inquiry is a major plus for the content industries.

On the whole, it is an amazingly clear, and good, set of opinions, solving the immediate issue and teeing up the future issues for future consideration.

posted by James DeLong @ 12:19 PM | Internet: P2P, Search Engines...

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