Grokster voting patterns
The 9-0 Supreme Court ruling,Download file, reversing Grokster on inducement liability grounds is consistent with the voting patterns of the Supreme Court on copyright cases in the last decade or so, which reflect that most of the cases have been decided unanimously or by comfortable voting margins.
For example, in Dastar v. Twentieth Century Fox (2003), Quality King v. L'Anza (1998), Feltner v. Columbia Pictures (1998), Campell v. Acuff-Rose Music (1994), and Fogerty v. Fantasy (1994), all of the decisions were unanimous (some with concurring opinions).
In recent cases that were not unanimous, Eldred v. Ashcroft (2003) and New York Times v. Tasini (2001), there were two dissenters: Justice Stevens and Justice Breyer. Justice Stevens wrote the majority opinion in the 5-4 Sony v. Universal case. In Grokster, Stevens and Breyer teamed up with Justice O'Connor (who was part of the original Sony majority) on a concurring opinion,Download file, that supported the 9th Circuit's analysis that Grokster was not liable for contributory infringement under Sony.
The other concurring opinion, Download file, in Grokster by Justice Ginsburg, which was joined by Rehnquist and Kennedy, argued that the "overwhelming" infringing uses should result in liability under Sony: "The total number of noninfringing copies may be reflective of, and dwarfed by, the huge total volume of files shared." This is reminiscent of Rehnquist's dissent in the Sony v. Universal case in 1984, which would have remanded the case for a finding of fact to determine the percentage of VCR recordings that was infringing.
Cathy Kirkman is a partner at Wilson Sonsini Goodrich & Rosati in Palo Alto, California. Her practice focuses on intellectual