But Grokster and StreamCast are not simply technologies that can be used for good or ill; they are technologies that were designed and marketed precisely so as to facilitate theft. Both companies positioned themselves to inherit Napster’s user base when the courts ordered that company to stop permitting illegal file-sharing. Both have promoted themselves based on the wide variety of materials illegally available. And both have frustrated copyright holders’ efforts to police their use. A company that builds its entire business model around facilitating illegality should not be immune from liability because of the possibility of innocent use. Drawing a clear distinction between such a product and an iPod would protect both innovation and intellectual property.
Funny: I thought that one of the important roles of law is to define the boundaries; if so, isn’t engineering something to stay within the bounds a reasonable effort? The distinction between “business model” and “technology” that the Court strained over seems to be completely absent here.