One of the lessons assumed from Grokster but rarely scrutinized is that the now famous inducement holding applies to search engines and almost any other type of web service. But a closer reading raises the question whether the inducement liability holding in Grokster even applies to Internet search engines like Google or torrent file search engines.
It is respectfully argued that Grokster's copyright inducement theory only applies to distribution of devices such as peer to peer copying software - Search Engines that provide mere hyperlinks (or dot torrent files) are not a device in the Grokster context.
Here is the key paragraph:
The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Further down in the opinion Justice Souter further clarifies and states:
In addition to intent to bring about infringement and distribution of a device suitable for infringing use, the inducement theory of course requires evidence of actual infringement by recipients of the device, the software in this case.
In Grokster Justice Souter thus clarifies what is a required showing for inducement, namely "intent", a "device", and "actual infringement by recipients of the device".
The Grokster case turned on the Supreme Court calling peer to peer copying software a device and finding defendants responsible for the copying arising out of "use" of the "device." In the case of search engines there is no copying on the site or via its services, there is no device, and there is nothing about the sites or services that provided a software mechanism for copying. Once the hyperlink is clicked on or the torrent file is downloaded the connection with the site is lost. There is no precedent for calling a metadata "data" file, void of any protectable content, a "device" or one that has any resemblance to the peer to peer copying software distributed in Grokster just like there is no rational basis to say that a book that lists URLs that may lead to infringing web sites is a "device" under Grokster. Thus, it is arguable that Grokster's inducement theory does not apply to search engines.
Disclosure: I represent Internet based Search Engines including, for example, Isohunt.com
