This show takes a shot at explaining the similarities between the landmark Universal vs. Sony (Betamax) case of 1984 and the current MGM vs. Grokster case that went in front of the Supreme Court last summer.
I only touch upon it briefly in my show. There’s a more complete explanation on the website.
Songs From The Commons #6

The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It’s what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush “believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others.”
Unfortunately, when the Supreme’s had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else – to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.
The court basically said there were two types before (contributory and vicarious) and now there’s a new, third kind, called “inducement.” That’s what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.
So there used to be just two kinds of “indirect” infringement, vicarious and contributory.
“Vicarious” is when you’re supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)
“Contributory” infringement is where you’re supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there’s a third, where I intend to make you infringe and take active steps to encourage it. That’s the test laid out by the decision…
Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.

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