As Alfred Yen, professor of law at the Boston College Law School, states in his introduction, this article "studies the construction of third party copyright liability in light of the recent Supreme Court case Metro-Goldwyn-Mayer Inc. v Grokster, Ltd.” The article is broken up into five sections: the first describes the doctrines that governed third party liability before Grokster, the second uses “fault and strict liability to expose the theoretical and practical tradeoffs implicit I these differing constructions, the third analyzes the case itself, the fourth describes the implications of the decision and “sets forth the general contours of an improved, post-Grokster­ construction of third party copyright liability, and the fifth gives some thought to the future of this subject matter.

The Grokster case is the latest in a series of cases where an internet service provider has been prosecuted for the actions of its users. Yet, even with this new decision in the books, little progress has been made to determine who is really the most responsible for infringement or how to hold them adequately responsible. Yen writes that “third part copyright liability benefits society by encouraging individuals to stop others from infringing, but those benefits come at a price… third party copyright liability suppresses non-infringing as well as infringing behavior.” Overall, this paradox illustrates the biggest deficit of internet copyright law: the inability to find the balance between, in Yen’s words, “desirable and undesirable consequences” of new technology. At this point in time, there seems to be no obvious strategy for regulating the internet without stifling future innovation and creation.

This article points out that although Grokster “gave the Supreme Court the opportunity to straighten out the law of third party copyright liability” little to no progress was actually made in interpreting pre-Grokster doctrines of third party copyright liability. Instead of “choosing between” existing “differing interpretations” of the law, Yen writes that the court “adopted a dormant theory of third party copyright liability, inducement.” Overall, Yen’s article shows that “inducement give courts a new tool for holding culpable defendants liable which reducing the risk of undesirable side effects.” Yen describes the Grokster decision as being “not a landmark, so much as a milestone, ratifying a continuing détente between those who build on the Internet and those in a position to regulate the builders.” This decision has also turned the focus of internet gate keeping to controlling software and PC uses ability to run that software rather than the ability to control the entire network.

Whether or not one agrees with the merit of the new inducement doctrine, this article is a comprehensive look at an area of copyright law that is important and continuing to quickly evolve. The story of these laws will continue to change drastically in the years to come, but this is a useful, informative and through-provoking look at the situation thus far.

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.