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June 27, 2005
Is BitTorrent Protected under Grokster decision?
My early take is yes, but 1) this is not legal advice and 2) I need more time to review the decision.
Why? Because its capable of substantial non-infringing uses and does not actively induce / promote / market its use for infringing purposes. Therefore distributors would not be held liable for infringement by third parties using the product.
See Footnote 12.
Professor Felten (BitTorrent: The Next Main Event posted on: Tue, Jun 28 2005 9:26 AM) seems to agree: "The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement — so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court’s active inducement test."
Posted by Kevin at June 27, 2005 04:44 PM