C.E. Petit has some interesting commentary post-Grokster. See his two posts.
I don’t quite understand Petit’s distinguishing Napster and Aimster based on intent. In Napster, there was evidence that the system operators intended the system for infringement, but the court’s ruling didn’t rest on that at all. In the contributory section, the court focused on Napster actual knowledge of specific infringements; the vicarious section focused on the right and ability to control in a similar fashion. As was the case in Napster and was further clarified in Grokster, actual knowledge of specific infringement must be received at a time when the receiver is capable of acting on that knowledge, and the right and ability to control is fully cabined within existing architecture. I’m not sure how you can read either of those cases to rest on an intent-based standard.
In Aimster, intent took on greater importance, but I’m not sure it was as critical as Petit makes it out to be. Judge Posner notes that Aimster willfully blinded itself to infringements and that Aimster’s docs were focused on infringing content (like Napster’s). However, he speaks of that in the context of noting that there was sufficient evidence for infringing uses and essentially no evidence of non-infringing uses. Indeed, basically that encompasses the holding of the case, and everything else is dicta. If you accept the rest of Posner’s standard as more than dicta, intent still isn’t the determining factor. He explains that infringing and non-infringing uses should be balanced, taking into account their probability and the ability for system operators to redesign to prevent infringement. Intent can be factored in particularly when considering the redesign, but it hardly seems to be determinative.
Speaking of dicta in the Aimster opinion, that actually appears to me to be a sound reason why the SC wouldn’t accept cert. The narrow holding is that, to meet the Sony standard, something more than mere speculation about non-infringing uses is required. That’s fairly consistent with Grokster and Napster and overall not that big a deal. Looked at that way, there is no circuit split. Posner’s broader interpretation of Sony was irrelevant to the Aimster case, and thus its conflict with Grokster may also be irrelevant.
In a comment, Doug Hudson makes a related point. He argues that the difference is that Aimster requires economically substantial uses and Grokster required technically substantial uses. Again, that conflict is much narrower than the split between Grokster‘s knowledge and conntrol requirement and Posner’s balancing test approach.
Petit provides some other reasons why cert might not be provided. He notes that the Aimster case was at a different appeal stage, and that both the Ninth and Seventh circuits reached the same conclusion regarding centralized services.
Meanwhile, Tim Wu offers reasons to believe cert is likely.