Grokster:

The Ninth Circuit has just affirmed a district court’s decision that the distributors of Grokster, a peer-to-peer file-sharing service, weren’t liable for contributory or vicarious copyright infringement.

My thoughts, which unfortunately probably presuppose a knowledge or reason to know of the legal structure of contributory infringement (which generally requires knowledge of specific illegal use or lack of substantial noninfringing uses, plus material contribution) and vicarious liability (which generally requires more or less direct financial benefit, plus right and ability to control, but that’s all very terse shorthand for more complex doctrines): The Ninth Circuit decision is right on the bottom line, and on most of the analysis, but mistaken when it finds that Grokster didn’t “materially contribute” to the infringement.

Providing a tool that makes an action easier is indeed material contribution. Gun manufacturers and distributors do materially contribute to crime; alcohol manufacturers do contribute to drunk driving, and car manufacturers to speeding; Grokster does materially contribute to infringement. The point is that all these products are dual-use products, usable for good as well as for ill. The distributors are also materially contributing to law-abiding behavior, and they don’t know which particular user is going to act lawfully and which unlawfully (I think the Ninth Circuit was quite right on the knowledge prong). The distributors’ actions therefore aren’t banned, because the bans would interfere with lawful uses as well as unlawful ones.

On the other hand, if the knowledge element is satisfied — if, for instance, I sell a gun to someone knowing that he is going to use it for criminal purposes, or sell someone a device knowing that he will use it to infringe — it seems to me that the case for tort liability or in some situations even criminal liability is very strong. Selling such devices does help the person commit the tort or the crime, and there’s little reason to shield such sales from liability when the seller knows the would-be tortfeasor’s or criminal’s intentions. See, e.g., RESTATEMENT (SECOND) OF TORTS § 876 (“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he . . . (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance . . . to the other so to conduct himself”). (In criminal cases, some states allow aiding and abetting liability only when the actor’s *purpose* is to help someone else to commit a crime, but other states allow such liability, or special criminal facilitation liability, simply based on a finding of knowledge).

So, again, I’d agree with the Grokster bottom line — I just think that it was mistaken on the material contribution element.