April 6, 2005 4:00 AM PDT
Supreme Court mulls file-swap 'pushers'
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technology world which has remained ambiguous for years.
In patent law, inducement happens when a company produces a product and then provides instructions on how to use it in a way that violates another company's patent, or advertises it in a way that encourages infringement. That could happen with an add-on component that isn't itself illegal, but that isn't allowed to be used with another patented product, for example.
Courts haven't used similar reasoning as the foundation for settling a major copyright case for decades, attorneys say. But some groups, including the IEEE, which filed an independent brief with the Supreme Court pointing to the issue, say it's the best way to balance modern technology and copyright.
The trick is to figure out exactly what "inducement" might mean.
Last year, the Recording Industry Association of America was the primary supporter of Sen. Orrin Hatch's Induce Act, which purported to focus on companies' behavior in this way, rather than on the technology itself.
But critics across the technology industry worried that the language of that bill was too broad, and could even trigger lawsuits against the producers of MP3 players like Apple Computer's iPod. Similarly, any effort by the Supreme Court to focus legal liability on active encouragement could open up a Pandora's box of definitions and subsequent lawsuits, some say.
"That's my big worry, that the court wants to recognize some inducement claim, then we face another 15 years of litigation to figure out what that means," said Electronic Frontier Foundation attorney Fred von Lohmann, who represents StreamCast Networks.
If the court does decide to focus on the issue of inducement, it almost certainly will mean another long round of litigation for Grokster and StreamCast Networks. The current hearings have focused only on a summary judgment ruling in the entertainment companies' case, which has not yet gone to a full trial.
Early briefs from Hollywood studios and record labels cited e-mails from the file-swapping companies that allegedly showed Grokster and StreamCast Networks wanted to "surpass" Napster.
It's impossible to tell exactly where the Supreme Court justices are heading with their decision, and their questioning on the issue last week may provide only false clues. In the meantime, file-swapping fans are still doing their best to help persuade the court that peer-to-peer networks can have legal uses.
Bloggers, asserting that court clerks are testing out the Grokster technology, are encouraging readers to download Grokster and use it to provide files that are legal to trade. Experts say that's likely to have little effect on the court's ruling--even if a clerk did happen to stumble on one of the legitimate files--because justices are primarily focused on the facts already established in the record of the case.
The court is expected to rule in mid-June.
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