Secondary Liability Questions Unanswered in Supreme Court's Grokster Opinion

Today's San Francisco Recorder features an excellent article by Fred van Lohmann of the Electronic Frontier Foundation regarding uncertainty left in the wake of the Supreme Court's Grokster decision. 7/29/05 - Cal Law: 'Grokster' Raises More Infringement Questions (subscription required). Van Lohmann argues that Grokster left unanswered crucial questions as to the scope of the Sony "Betamax defense" for non-infringing uses and whether the ability to reengineer a product is sufficient to create vicarious liability. These questions are particularly troubling when the possibility of huge statutory damages for copyright infringment could be a "corporate death penalty" and when corporate officers and investors can be pursued individually for copyright infringement as has occurred in the Napster case. (See the 6/29/05 posting Napster Investors Still Pursued by Recording Industry.)