Grokster + DSU = ?

EFF’s Fred von Lohmann, post-Grokster: “A variety of new digital technologies are advertised and promoted for uses that the technology vendors believe to be fair uses. For example, Time Trax promotes its technology for recording satellite radio, Mercora for recording music from webcasts, and Sling Media for transmitting your TiVo’d TV shows to yourself over the Internet….

“Is it inducement if you reasonably, but incorrectly, believed that the use for which you promoted your product was covered by fair use (or any other copyright exception)?”

The Federal Circuit, today (via Jason): “Grokster, thus, validates this court’s articulation of the state of mind requirement for inducement. See Manville, 917 F.2d at 544. In Manville, this court held that the ‘alleged infringer must be shown . . . to have knowingly induced infringement,’ 917 F.2d at 553, not merely knowingly induced the acts that constitute direct infringement. This court explained its ‘knowing’ requirement:

‘It must be established that the defendant possessed specific intent to encourage another’s infringement and not merely that the defendant had knowledge of the acts alleged to constitute inducement. The plaintiff has the burden of showing that the alleged infringer’s actions induced infringing acts and that he knew or should have known his actions would induce actual infringements.'”

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