Induce - Criticism

Criticism

Since the decision was established, several intellectual property scholars including Lawrence Lessig have charged that the inducement rule has created a "great deal of uncertainty" around technological innovation, and suggested that this uncertainty will create a "chilling effect" on future technological development. Specifically, Lessig cites issues such as the problem of increasing costs of innovation as a result of the rule, as companies and individuals will be forced to devote resources to ensuring compliance with any component of a new technology that might be now considered questionable in a particular application, and new companies in particular will be deterred from producing new products because of the large costs of potential litigation.Fred Von Lohmann, an intellectual property lawyer with the Electronic Frontier Foundation, states Grokster similarly "create a new theory of liability that will tie up the courts for a long time," pointing out that litigation could be used as a tool to delay the development and activity of technology-producing companies regardless of whether the software in question is able to be held liable.

Critics have also cited a variety of issues with the Court's specific language in Grokster, especially over vagueness of exactly what the rule covers. For instance, the Court writes, "The inducement rule, instead, premises liability on purposeful, culpable expression and conduct..." Because "inducement" is defined so broadly, say critics, it seems plausible that many current products could violate the same three principles as Grokster - one could argue that the marketing of the popular mp3 player known as the iPod meets all three criteria that the court proposed: 1) Apple's advertising campaign "Rip, Mix and Burn" can be interpreted as a direct incitement to copyright infringement, 2) Apple has not taken visible steps to discourage copyright infringement (i.e., the iPod plays MP3 files which are widely distributed on file-sharing sites, rather than creating or relying on a more restrictive format that would ensure that the user had purchased the files they were playing), and 3) Apple benefits monetarily from copyright infringement, as they sell iPods that can store up to 120 gigabytes of music — which vastly exceeds most users' libraries of legally obtained music — which "can only be meant for storing illegally downloaded music," according to one critic.