Advanced Copyright Law on the Internet

interpreting Sony more strictly than Justice Breyer would.^1947 Nevertheless, it seems that,

to the extent the Aimster decision suggests that failure to affirmatively prevent infringing

uses could by itself, without other evidence of unlawful intent, subject a defendant to

liability, it is plainly inconsistent with the Grokster majority opinion.^1948 In addition,

Aimster’s general cost/benefit balancing approach to the Sony safe harbor may not

survive the majority opinion either.^1949

Although the Grokster case is one of the most important copyright decisions to come out
of the Supreme Court, it clearly left much work to be done by the lower courts, and perhaps the
Supreme Court itself in future copyright decisions, to work out the boundaries of the copyright
inducement doctrine and the Sony safe harbor.

(6) The Grokster Decision on Remand

(i) The Ruling on Liability

Defendant 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 summary
judgment as to liability of defendants StreamCast and Sharman for inducing copyright
infringement.^1950 Not surprisingly, the district court’s ruling essentially tracked the Supreme
Court’s analysis, which had strongly presaged the ultimate outcome of the case.^1951 By and
large, the district court’s opinion did little more than elaborate factually on the various bases the
Supreme Court had identified in its opinion upon which the defendants could be held liable
under the inducement doctrine.

The district court may, however, have put one important gloss on the Supreme Court’s
legal rulings that may represent an extension of the scope of inducement liability. Specifically,
StreamCast argued that a defendant could be found liable under the inducement doctrine only if
it: (1) for the purpose of inducing infringement, (2) took actions beyond distributing
infringement enabling technology, and (3) which actually resulted in specific instances of

(^1947) Id. at 955 (Breyer, J., concurring).
(^1948) “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 noninfringing uses. Such a holding would tread too close to the Sony safe harbor.” Id. at
939 n.12 (Souter, J.).
(^1949) See Mitchell Zimmerman, “Does Aimster Survive Grokster,” Cyberspace Lawyer, Dec. 2005, at 1 (noting that
Aimster insisted that “balancing of costs and benefits is necessary,” even in cases “in which substantial
noninfringing 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 silentio
disapprove of Aimster.
(^1950) Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, 454 F. Supp. 2d 966 (C.D. Cal. 2006).
(^1951) Indeed, the district court noted in its opinion after reviewing all the evidence that “in Grokster the Supreme
Court had hinted that summary judgment should be granted for Plaintiffs after reviewing much of the same
evidence.” Id. at 992.