This article considers the implications of the Supreme Court's Grokster II ruling, which considered four internet file sharing technologies that were previously found by district courts to have been liable for copyright infringement. The technologies considered are Napster, Grokster, Morpheus and Aimster. The article outlines a Grokster II test used to identify infringing file sharing programs. The test relies heavily on whether the producer of the technology advertised intent to distribute copyrighted material. The four factors used to determine liability outlined by the author are whether: (1) defendants made express statements of intent to induce copyright infringement, (2) defendants advertised that they intended to replace a known source of infringement, (3) defendant attempted to filter or reduce infringing use and (4) defendants' business models used as evidence bolstering defendants unlawful intent. The author points to the fact that these factors, while universal in their use in determining the liability in the four aforementioned technologies, were used to produce inconsistent judgments regarding contributory infringement by the producers of the respective technologies. The concept of unpredictability in digital media copyright law stems from these inconsistencies in Grokster II.
The piece of this article that will be most useful for my paper is the section that follows where the author tests the four factors from Grokster II on three new technologies. The technologies discussed here include TiVo ToGo, MyTunes Redux and Limewire. Each technology produces ambiguous judgments using this four factor test since TiVo ToGo can not be assumed to have an underlying infringing use, and MyTunes Redux and Limewire do not operate for profit and it is also ambiguous whether any of these products advertisements can be shown to induce users to infringe copyright. This will serve as evidence in my paper that the current system by which courts evaluate potential copyright infringers is not effective for many technologies currently available that bear striking similarities upon which action has been taken. I suspect that in the future many new technologies will arise whose purpose is, in fact, to replace those that have been shut down by the recording industry-precisely one of the reasons Grokster, itself was found guilty. These developments suggest, as does evidence in my other sources, that the recording industry and the courts will have to work more closely with users of peer to peer file sharing networks and internet service providers to either devise new methods of preventing illegal file sharing or establish a new system by which digital music is made available.