In this article, Andrew Beckerman-Rodau asks whether the Grokster ruling was really a good decision or simply judicial activism. Judicial activism refers to the practice of a court not interpreting the law as it already exists but rather legislating from the bench and creating new legal interpretations. Beckerman-Rodau writes that the Grokster decision rightly recognizes “the conflicting goals which had to be balanced: protecting intellectual property to promote creative activities; and, the importance of not impeding creative and innovative conduct.”

Overall, Beckerman-Rodau also writes that the Grokster decision “does not represent a novel interpretation of the law. Rather, it is consistent with the underlying principles of intellectual property law and it is based on established unfair competition theory which is supported by existing precedent.”

The article begins with “an overview of the decision,” first looking at the facts of the case. Then it discusses what the court did decide – the application of the inducement theory – and what it did not decide – the ramifications of the Sony decision in this context. Then it goes on to deal with the underlying policy considerations of the case. In both Sony and Grokster the same conflicting policy concerns are raised, which deal with “the underlying policy of promoting creativity and innovation by granting property protection for the results of such activity versus withholding such property protection to avoid impeding technological developments.” Beckerman-Rodau states that “copyright law exists to provide benefits to the public, not to maximize economic benefit flowing to a creator.” The Grokster decision went in favor of the content holders, those looking to reap the maximum economic benefit.

The article continues by looking at the application of the new inducement theory. First, it looks at the iPod, stating that although the device has illegal uses and Apple is aware of the potential for infringement the knowledge alone is not enough to hold them liable. The fact that Apple has provided iPod owners with a legal model for acquiring music, iTunes, only further helps Apple avoid liability. Secondly, the article looks at the legality of DVRS – meaning digital video recorders such as Tivo. Again, this service does not encourage users to engage in illegal activity and does not intend for infringing activities to be its primary usage.

Finally Beckerman-Rodau concludes with a recommendation for the lower courts’ application of the Grokster decision. He writes that a good way to balance the concerns of chilling innovation with the concerns of allowing infringement to occur “would be to require sufficient proof of intent to meet the clear and convincing evidence standard for inducement liability. This would avoid chilling innovation because inducement liability would only apply in situations where it is obvious that a product is being distributed with the clear intent that it be used for infringing activity. Additionally, this heightened standard would not affect the ability of a copyright owner to sue direct infringers.”

Whether courts will take this sort of advice is yet to be determined, but Beckerman-Rodau clearly states that the court, in this instance, was not legislating from the bench and instead codifying “preexisting judicially recognized doctrines” in order to make a ruling in contentious legal territory. As Beckerman-Rodau suggests, online copyright liability is an area of law that is only beginning to come into the forefront of legal decision making and liability discussions and will be debated long into the future.