The petition to the Supreme Court in the Grokster case was recently filed. Based on an impromptu class poll, the majority of the students responded that they thought the Supreme Court would grant cert. and reverse the Ninth Circuit’s opinion. Professor Solum mentioned that since all of the major media industry players are involved in this lawsuit, if this case fails, Grokster and Kazaa will get off like O.J. (I added the O.J. part). I don’t see that happening, so I think cert will be granted. As for the outcome, based on the fact that the “Supremes” seem to take a liking to beating up on the Ninth Circuit whenever they can, I also would agree that the case will be reversed. How it will be decided, I have no clue. To try to formulate an idea, I read the cert. brief and the Grokster and Aimster cases again. This only resulted in confusion. I whole-heartedly hope that some of you will help to restore some clear insight.
In Aimster, Posner stated:
The evidence that we have summarized does not exclude the possibility of substantial noninfringing uses of the Aimster system, but the evidence is sufficient, especially in a preliminary-injunction proceeding, which is summary in character, to shift the burden of production to Aimster to demonstrate that its service has substantial noninfringing uses.
… All five of our examples of actually or arguably noninfringing uses of Aimster's service are possibilities, but as should be evident from our earlier discussion the question is how probable they are. It is not enough, as we have said, that a product or service be physically capable, as it were, of a noninfringing use. Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use, let alone evidence concerning the frequency of such uses.
The Aimster decision involved a preliminary injunction proceeding. It seems like Posner is saying that the burden was shifted to make Aimster show actual evidence of non-infringing uses of its software. Capability of non-infringing uses, as the Ninth Circuit says is enough, doesn’t fly with the Seventh Circuit. Posner says that it is not a question of whether non-infringing uses are possible, but more of a question whether or not they are probable. So, the Ninth Circuit asks whether the technology can have non-infringing uses, while the Seventh Circuit asks whether it is likely that a technology will have non-infringing uses. For products that are not-yet-introduced or just barely introduced, it is practically impossible to tell how the public will likely use the technology. In Sony, nobody could tell for sure how the Betamax was going to be used. In fact, it can be argued that it ended up being used for a completely different purpose (renting and watching videos) than that which it might have initially been used (time-shifting). So, for new products, Posner’s reasoning shouldn’t apply. If it did, then it seems like technology that is capable of non-infringing uses, and that is likely not to be used solely for infringing purposes, would be blocked by an injunction. And, as always, this is not good for the consumer.
If we apply Posner’s thinking to Grokster anyway, Grokster would be held contributorily liable unless it could show evidence of actual non-infringing uses. Since Grokster has been around for a while, there might be evidence of non-infringing uses out there. Maybe it is not so unreasonable to require Grokster to produce some of this evidence. However, Grokster has a problem because it has no control over its system and can’t point to specific files that are shared that are non-infringing. I guess Grokster users could be surveyed and this evidence could be introduced, but how reliable would this survey really be? Who is going to admit they use Grokster to illegally swap materials? If you do, no doubt the Copyright Police will destroy your computer and fine you for all you are worth (and burn your house down too). So, by the design of their software, which prevents them from showing actual non-infringing use, Grokster would be on the hook.
Like I said, maybe I am missing something. But, it seems the Aimster and Grokster courts are trying to protect two different things. The Ninth Circuit looks more to protect new technology and not-yet-introduced technology by stating that as long as the technology is capable of non-infringing uses, you will not be contributorily liable right off the bat. The Seventh Circuit seems to be saying that once your product is out there (for how long, who knows), and if it is being mainly used for infringing purposes, even though it is capable of non-infringing uses, you had better have some evidence of actual non-infringing uses or you will be faced with an injunction. It seems like there really isn’t a “one size fits all” solution to this problem. Maybe there does need to be two different standards and evidentiary burdens involved. If so, maybe the “Supremes” shouldn’t grant cert because there really is no conflict between the two Circuits.