AALS Annual Meeting, Section on IP, part five

Final post, the comments period. Again, I emphasize that these are my notes, not a transcript. Eventually, I'm told, a podcast will be available at aals.org.

Mark Lemley suggested that Grokster's impact on small and large companies would differ. There might be discrimination against small companies (which can't make deals with content owners, and which may only have one product & thus look more like a bad actor if that product is used for infringement compared to the same product from AOL). Small companies also don't know not to make a bad record because they're not extensively advised by counsel -- if Justin Hughes is right, only large companies pay attention to the law at the programming stage, though the law may pay attention to them at other stages. (My comment: I think there's a small-cap valley -- tech from programmers with no major commercial aspirations will pay no attention to the liability standard; big firms will pay so much attention that they won't get sued because they'll cut deals beforehand; small firms may get hammered in court.)

Lemley also worried about bleedback from Grokster into patent law, where currently selling a device with bad intent isn't enough to justify inducement liability. Justin Hughes suggested that this was unlikely, since there's already a disconnect between copyright and patent about what substantial noninfringing use is, so the two areas of law haven't done much borrowing beyond the very general terms of contributory liability. Neil Netanel added that, with an already-extant body of law on what constitutes patent infringement inducement, there probably wouldn't be much push to borrow from copyright.

In response to a question I didn't make notes on, Wendy Gordon observed that the distribution right really is contributory liability without fault -- it allows you to go after the store owner who thought he was selling legitimate products. Congress decided it was necessary to be able to go after that type of person easily even without knowledge or fault. I'm not sure what that means for other kinds of liability, but I thought it was a neat point.