Secondary Liability for Third Parties' Copyright Infringement Upheld by the Supreme Court: MGM Studios, Inc. V. Grokster, Ltd

I. INTRODUCTION The legal system frequently lags behind technological innovation. This requires Congress to amend existing acts or create statutes to attempt to keep pace with technological innovations as it did with the Computer Software Act of 1980 which amended the Copyright Act by adding a definition of computer programs, or when it enacted the Digital Millennium Copyright Act. (2) The Supreme Court similarly had to apply existing law to new technology, as it did in 1984 in Sony Corp. of America v. Universal City Studios, Inc. concerning the videotape recorder, (3) and again in 2005 in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. concerning Internet peer-to-peer file sharing software. (4) This article will examine how the Court applied secondary liability for copyright infringement to emerging technologies, first in Sony in 1984, (5) and most recently, at the time of the publication, in Grokster twenty-one years later in 2005. (6) This article will first discuss direct and secondary copyright infringement, (7) and will briefly examine the AM (2) musical works including any accompanying words; (3) dramatic works including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (13) The owner of the copyright the exclusive right to: (1) reproduce the copyrighted work; (2) to prepare derivative works; (3) to distribute copies of the work; ... [and] (6) in the case of sound recordings, to perform or display the copyrighted work. (14) The copyright term in the United States is now the author's life plus seventy years, (15) or in the case of anonymous, pseudonymous, or works made for hire, the copyright lasts for the shorter of ninety-five years from publication, or one hundred twenty years from creation, (16) under the Sonny Bono Copyright Term Extension Act of 1998. (17) Anyone who violates any of these exclusive rights is an infringer, according to the Copyright Act. (18) To establish direct copyright infringement, the plaintiff must establish ownership of a copyright and unauthorized copying of that original work of authorship. (19) Under common law, secondary copyright infringement may occur under the theories of contribution or vicarious infringement for the direct infringement by another. Contributory copyright infringement occurs when one induces, causes, or materially contributes to the infringing conduct of another, by one who knows or reason to know of the direct infringement. (20) Vicarious copyright infringement is an outgrowth of the doctrine of respondeat superior, and occurs when one has the right and ability to supervise the infringing activity, and a direct interest in the infringing (21) Civil damages available for copyright infringement include actual damages and profits, (22) or statutory damages, (23) and an injunction against the infringing activity. (24) Sony Corp. …