After a scan of the Supreme Court decision [PDF] in the case of MGM v. Grokster, I realized my initial take on the ruling was probably over the top. That said, the ruling probably will embolden the RIAA (joined soon by the MPAA) to sue early and often. Here’s the money quote from the decision:
The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
That standard, if pursued by litigants, would seem to be something that would worry me if I were the manufacturer of CD burning software, CD-R drives, portable MP3 players, Apple’s iPods, etc.
Recordable CD drives (CD-R/CD-RW) have been the bane of the software industry for years due to piracy concerns, and recordable DVD drives are now much more common. Using the logic of MGM v. Grokster, software makers could sue the makers of CD burring software, or the recordable drive manufacturers themselves, for damages caused to them by users of the software or devices. Ironically Sony is on both sides of that fence, as they make Recordable CD and DVD drives and they own a a Hollywood studio.
Is it likely?
Hard to say, but remember that no one believed the RIAA would hunt down and blanket the nation in lawsuits against individual users of P2P.
Update: Jeff Harrell, who disagrees with me, says the decision is no big deal and has a FAQ about the decision. Given that the RIAA (and others) are involved I’d say he’s being overly optimistic that they won’t try to press the one game winning streak.
Update 2: I stayed away from the obvious iPod reference, mostly because my memory of their ad campaigns was too fuzzy. Rebecca Tushnet at SCOTUSblog wonders whether the Apple Rip. Mix. Burn. ads and early Sony Betamax ads would have opened the companies up to contributory infringement claims decided in this case in favor of MGM.