Ok ok ..... by now we all know that Grokster is liable for secondary copyright infringement. It not like I didnt tell you ages ago but everyone had to argue about it.
It looks like the reasons for the secondary infringement were that Grokster made a material gain from infringement of copyright despite the software being capable of substantial non-infringing uses.
What is that I hear - judge made law??
Gasp, shock, horror.
Rather than fix the old standards it appears that the court just added a new one so that:-
2nd Copyright Infringement =
1. A device or event
2. Copyright may be infringed by operation of the device
3. The device is not capable of 'substantial non-infringing uses'
4. The device creates a commercial advantage for its proprietor.
It looks to me as though the court has created a dichotomy between the rights based application of copyright law and the commerce based application of a tort of unfair competition or unfair commercial gain.
The reasons for the decision were not really based in the law but rather the policy regarding distribution of works and subject matter in which copyright subsists.
It really is much of a muchness.
Thank god for the logical Australians standards.
Hey and hasnt lessig gone quiet.