'The internet industry has had some time to sit back and examine the US Supreme Court's decision in MGM v Grokster, pondering its ... impact on technology and software developers as well as the entertainment field. In this virtual roundtable discussion, members of Internet Law & Strategy's Board of Editors and other Internet law experts chime in with their thoughts.'

Jeffrey D Neuburger (Chair, Technology, Media and Communica-tions Department, Brown Raysman Millstein Felder & Steiner, New York): The iPod is safe under Grokster, but technology distributors that intentionally seek profit by encouraging infringing acts are not. The Court overturned the 9th Circuit opinion that let the distributors of peer-to-peer file-sharing software off the hook for liability for copyright infringement by users of its software, concluding that the distributors had "a purpose to cause and profit from third-party acts of copyright infringement." The Court aimed its opinion squarely, but also very narrowly, at the distributors, giving the distributors very little ability if any to avoid liability on remand. The Court took pains to carefully detail the specific actions by the distributors from which, the Court said, "a patently illegal objective" could be inferred. But on the other hand, the Court made it very clear that simply manufacturing and distributing technology that can be used for infringement is not enough to result in liability, if the traditional Sony Betamax test of a "substantial non-infringing use" is met. This gives content owners an important new avenue for protecting their intellectual property rights.

Sean F Kane (Drakeford & Kane, New York): On the consumer electronics front the decision will not likely have a wide impact and most of these products should be in the clear. However, the Grokster case will likely cause certain manufacturers to play it safe in the future by ensuring that their advertising and primary appeal of their devices is not specifically to foster infringement. Moreover, certain manufacturers will likely modify devices to allow initial downloads, but to prevent further unlimited copying or require other coding to ensure that content is being consumed only by the original consumer.

John T Aquino (Attorney, Consultant, Washington, DC): The decision does not restrict technology but focuses on the intent of the users, which is as it should be. The Court felt there was clear evidence of Grokster and StreamCast promoting infringement, and there seems to be. I think this is a very big deal. It's a wakeup call. It's a reality check. It says the copyright law is relevant and functioning. It says technology must work with the law and not hope it goes away.

John Delaney (Partner, Morrison Foerster, New York): Although the Supreme Court's decision has remanded the case back to the 9th Circuit for further proceedings, the Court's decision is undoubtedly a victory for the entertainment industries and a setback for peer-to-peer networking companies such as Grokster. The unanimous decision reinforces traditional copyright doctrine that, if one encourages or takes affirmative steps to help others infringe, one can be held liable for copyright infringement -- even if one did not directly engage in unauthorized copying. This is a significant victory for the entertainment industries. Although the case is remanded for further proceedings, the issue on remand will be whether summary judgment should in fact be granted for the content providers. This is a crushing defeat for the Groksters of the world.

Susan Crawford (Assistant Professor of Law, Yeshiva University Benjamin N Cardozo School of Law, New York): District courts will struggle with the language of Grokster and seek limiting principles. It seems clear that mere distribution of technology alone is not contributory infringement, but the question is how much more than mere distribution is needed before inducement can be found.

There will be arguments that corporate statements of intent to encourage infringement are a necessary prerequisite to inducement claims. And, there also will be arguments that business plans need to be exclusively structured around the idea of encouraging infringement.

So both sides of this debate will see Grokster as a Rorschach test. The studios will claim that almost any corporate knowledge of infringement by users of the technology amounts to inducement liability. Technology companies will point to other language in Grokster saying mere knowledge can never be enough to constitute inducement and much more focused, express corporate acts are necessary.

Sean F. Kane (Drakeford & Kane, New York): I believe that Mr Delaney and Ms Crawford make valid points in that the Grokster decision's future is somewhat murky. As the current movement of the P2P industry toward a fee-based business model increases, this decision may have less and less specific impact on the current industry issues. Moreover, the lack of a clear distinction concerning what level or the specific nature of activity that may be deemed to contribute to infringement, is likely to result in more and more litigation until this issue is sufficiently defined.

Originally by Law.com - Tech Law Practice Center, 9:45 PM

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