Grokster and the Active Inducement Test

Alex Halderman has written an excellent post at Freedom to Tinker titled Grokster: The Case is Submitted. Halderman, who attended the the Grokster arguments, first comments on his observations.

Halderman then writes about the possibility of the Supreme Court adding an "active inducement" test to Sony's "substantial noninfringing uses" test:

I think it is plausible that the Court will craft a narrow active inducement test resembling the IEEE proposal. This is likely for several reasons. Such a test would be neutral with respect to technology, thus creating a precedent applicable to much more than peer-to-peer file sharing. It would be responsive to the worries of technologists by clearly defining how innovators would need to act to avoid liability, yet it would also allow the courts to hold Grokster accountable because of its past encouragement of infringement. Inducement would function as a parallel category of liability complementing Sony, so the Court could leave the celebrated Betamax test intact. With both rules in place, defendants would need to demonstrate substantial non-infringing uses of their products and refrain from overtly encouraging infringement.

Check out the rest of Halderman's post.

More: IEEE Amicus Curiae in Support of Neither Party [pdf] (including IEEE's proposed "active inducement" test).

More: Cross post at EEJD (including additional information).