Bifalgorithm post · Property · 13.05[E][4][c], p. 13-84 (1982). Proof of actual harm, or

522

522 (Property · 13.05[E][4][c], p. 13-84 (1982). Proof of actual harm, or) — "522 use s.” And they answer that question by stating that the Court of Appeals wa…

Ideas in this flowchart

  • Grokster passes Sony’s test because its product has substantial noninfringing uses.
  • The author disagrees with the claim that the Court of Appeals was wrong to grant Grokster summary judgment.
  • The Sony opinion and the record evidence together provide adequate legal support for the Court of Appeals’ conclusion.
  • Sony’s test asks whether the product is capable of substantial or commercially significant noninfringing uses.
  • MGM’s expert declared that 75% of files on Grokster were infringing and 15% were likely infringing.
  • These figures leave approximately 10% of the files apparently noninfringing.
  • The approximately 10% noninfringing use is similar to the roughly 9% authorized time-shifting use of VCRs considered in Sony.
  • Witnesses described the noninfringing files on Grokster’s network without detailed quantification.
  • The network included authorized music by artists such as Wilco, Janis Ian, Pearl Jam, Dave Matthews, and John Mayer.
  • The network included free electronic books and other works from online publishers, including Project Gutenberg.
  • The network included public-domain and authorized software, such as WinZip.
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522

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"522 use s.” And they answer that question by stating that the Court of Appeals was wrong when it granted summary judgment on the issue in Grokster’s favor. I write to explain why I disagree with them on this matter. I The Court’s opinion in Sony and the record evi dence (as described and analyzed in the many briefs before us) together convince me that the Court of Appeals’ conclusion has adequate legal support. … . When measured against Sony’s underlying evidence and analysis, the evidence now before us shows that Grokster passes Sony’s test - that is, whether the company’s product is capable of substantial or commercially significant noninfringing uses. For one thing, petitioners’ (hereinafter MGM) own expert declared that 75% of current files available on Grokster a re infringing and 15% are “likely infringing.” That leaves some number of files near 10% that apparently are noninfringing, a figure very similar to the 9% or so of authorized time-shifting uses of the VCR that the Court faced in Sony. As in Sony, witnesses here explained the nature of the noninfringing files on Grokster’s network without detailed quantification. Those files include: Authorized copies of music by artists such as Wilco, Janis Ian, Pearl Jam, Dave Matthews, John Mayer, and others. Free electronic books and other works from various online publishers, including Project Gutenberg. Public domain and authorized software, such as WinZip"

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