As any decent blog in the U.S. seems to require a posting on today's Grokster decision by the Supreme Court, here are my $ 0.02 (for a very interesting discussion of the decision, see Randal Picker's blog).There seems to be a tension in the Grokster decision concerning whether the particular architecture of a P2P system should be used as an argument in contributory infringement cases.
The Grokster decisions by the lower courts can be understood that, as long as the developer of a P2P network does not operate a search index, he cannot not be held liable. Therefore, it was understandable that Napster (with a centralized search index) was decided differently than Gnutella-based systems (with no centralized index at all) and FastTrack-based systems (with Supernode-based indices). The Supreme Court rejects this argument by relying on an inducement test.
The Supreme Court's line of reasoning suggests that a developer of a P2P network cannot evade liability by designing the network's architecture in a particular way. It's not the architecture, it's inducement what counts. Therefore, judges don't have to look into the technological details of the architecture, they "just" have to decide whether there was some inducement. In deciding contributory infringement cases, it does not seem important anymore to know any details about the architecture of the P2P system.
However, this shift from an "architecture test" to an "inducement test" is limited by the fact that, according to the opinion on p. 22, the inducement test relies, among other facts, on whether the P2P developer developed filtering tools and similar mechanisms. (If the *only* difference between a centralized and a decentralized P2P system were that, in a decentralized P2P system, the developer could evade liability because, even the decision to design a decentralized P2P system could be viewed as a sign for inducement).
So, in the end, the technological design of a P2P network still plays a, albeit somewhat more limited, role. By stressing the importance of filtering for the inducement test, the decision also seems in conflict with Justice Breyer's concurring opinion on p. 11 according to which one advantage of Sony is that judges do not have to decide whether filtering is technologically feasible and/or commercially viable. Under Grokster's inducement test, it seems that judges now have to decide such questions.
Thoughts?