Grokster readings
It seemed important to re-read the Sony decision today. Taking another close look at that case reminds me how careful the Court was to extend the boundaries of copyright liability only to include (as secondarily liable) those who were doing everything but the actual infringing.
So, for example, someone who produced a script, sold the resulting motion picture to others, and then expected that it would be commercially exhibited (with the exhibition and the reproduction the infringing acts) is seen as someone who has done everything possible other than the final, implementing act of infringement.
And someone who is in an ongoing relationship with the direct infringer and is knowingly facilitating the infringement (again, “doing everything but”) is a contributory infringer. Such an actor falls within the very tight circle drawn just outside direct liability.
I don't think the Sony Court would have created an “inducement” standard. They would have gone to Congress rather than make something like that up. The Court at that point was very nervous about expanding the statutory monopoly of copyright.
I also re-read the Grokster 9th Circuit opinion again today, and it's hard to see how the 9th Circuit misread Sony. Reasonable minds could certainly differ on this point, I am sure.
I know that twenty years have passed, but I think this statement from the Sony Court may still be right:
It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written. Applying the copyright statute, as it now reads, to the facts as they have been developed in this case, the judgment of the Court of Appeals must be [affirmed].
This is an important case, this Grokster situation, and the problem may be that Grokster is an unsympathetic “client” for many people. But this often happens in important cases — we're stuck with actors who we don't altogether like. The principles here are very similar to those in central First Amendment cases. What kind of speech (or innovation) should be filtered out? Who gets to march in what parade? Who gets to decide what filters are appropriate?
It seems as if we need to be just as careful as the Sony Court, and just as mindful of the importance of the internet as the CDA Court. None of this is easy.