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Post-Grokster: Chilling Effect Already Starting?

EFF points to a bulletin sent by a large Silicon Valley law firm to all its clients, attempting to clarify the Grokster ruling and its possible effect on technology companies. Though the explanations are mostly along the lines of admitting that things are still muddy and nobody knows how it will play out, there is an ominous warning tone to the bulletin. The brief asserts that MGM vs. Grokster was actually an easy case to decide, thanks to Grokster's "egregious" inducement to unlawful behavior, and other cases will be much trickier. "Although it is somewhat difficult to predict, copyright holders may become more aggressive in filing lawsuits alleging secondary infringement based on inducement theories. Because the question of intent is highly fact-dependent and discovery rules will afford plaintiffs wide latitude to seek probative evidence, it may be more difficult for defendants to obtain resolution of cases short of going to trial." The EFF concludes that this legal uncertainty will translate to hesitant and chilled entrepreneurism in America.

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