As Yogi Berra (or it might have been Neils Bohr) said: "Prediction is very difficult, especially if its about the future." Nonetheless, I will make a prediction about the course of future litigation under Grokster.

The tech industry is upset about the Court's willingness to accept failure to install filtering technology as evidence of an intent to induce infringent -- tech had hoped to avoid any such affirmative obligation.

But, as is often the case in Supreme Court opinions, what the text taketh away the footnote giveth back; so, here, footnote 12 says: "Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial non-infringing uses. Such a holding would tread too close to the Sony safe harbor."

This is a reasonable caution. An affirmative obligation to filter would be very tricky to enforce. But here is how the filtering issue is likely to play out.

Content commpanies and tech innovators are devoting great efforts to development of DRM content-protection measures. Content companies are also engaged in black arts of self-protection, such as spoofing (example: a P2P files is labelled as the latest Foo Fighters song, but actually contains a lecture by RIAA head Mitch Bainwol on the evils of piracy), or flooding uploading sites.

These protective measures are no problem for legitmate download services, but of course they can interfere greatly with the pirate services. Their weakness has been that they beatable, and the P2P software purveyors/services have taken steps to neutralize them.

But, under the Grokster opinion, such efforts to defeat protection -- anti-filtering, so to speak -- are going to be regarded, quite properly, as very bright line proof of intent to induce infringement.

It might not be clear how far a tech company must go in affirmatively protecting content, but it is crystal clear that taking action to defeat protection is a no-no.

And this is not a bad place to strike balance.

posted by James DeLong @ 11:30 AM | Internet: P2P, Search Engines...

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