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Abstract

It was prescient of the Michigan Telecommunications and Technology Law Review to have organized a conference to discuss the Supreme Court's decision in Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc. As the articles in this issue reveal, commentators have had somewhat mixed reactions to the Grokster decision. Perhaps I am the most mixed (or mixed up) about Grokster among its commentators, for I have had not just one but three reactions to the Grokster decision. My first reaction was to question whether MGM and its co-plaintiffs really won the Grokster case, or at least won it in the way they had hoped. This question arose because MGM had propounded several theories on which it had hoped to win the case, and the Court's unanimous decision endorsed none of them. My second reaction was to worry that courts would take too literally the off-handed dicta in Grokster about the relevance of filtering technologies and would impose obligations upon makers of peer to peer and other distribution-enabling software to filter for infringing content, even though filtering technologies cannot do the task well enough to be worth the effort. Conferring with technologists knowledgeable about filtering led me to conclude that filtering technology is unlikely to ever be good enough to achieve the intended goal. My third reaction emerged as I reflected upon various developments in the first year or so after the Grokster decision, which suggested that my fears about court-ordered technology mandates had not been borne out. The safe harbor for technologies with substantial non-infringing uses, established more than twenty years ago in Sony Corp. of America v. Universal City Studios, survived its toughest challenge yet in the Grokster decision, and seems likely to continue to be the default rule for judging secondary liability of technology developers for infringing acts of others for the foreseeable future.