Peer to Peer File Sharing, Copyright, and Grokster

ABSTRACT Music and entertainment media lovers widely use copying services offered on the internet to download and otherwise copy songs and movies. Those who engage in the practice are often committing copyright infringement. The entertainment industry wants to stop the practice, hoping to maximize its profits on its copyrights in the works. Pursuing suits against each individual copier is too expensive. So the entertainment industry has pursued the internet service providers for enabling the copiers to illegally copy works. The entertainment industry bases its claim against the internet service providers forms of indirect copyright liability that are judicially created and recognized. They are not written in the copyright statute. First, this article explains the concept of peer to peer file sharing. Second, it reviews the judicial opinions that have created and applied the doctrines that involve indirect copyright liability. Third, it summarizes the Supreme Court's recent case involving indirect copyright infringement liability for service providers who enable others to illegally copy entertainment works. Finally, the article explains the effect of the decisions on copyright law policy. INTRODUCTION Music and entertainment media lovers widely use copying services offered on the internet to download and otherwise copy songs and movies. Those who engage in the practice are often committing copyright infringement. The entertainment industry wants to stop the practice, hoping to maximize its profits on its copyrights in the works. Pursuing suits against each individual copier is too expensive. So the entertainment industry has pursued the internet service providers for enabling the copiers to illegally copy works. The entertainment industry bases its claim against the internet service providers on forms of indirect copyright liability that are judicially created and recognized. They are not written in the copyright statute. In 2005, the Supreme Court decided its third copyright case to consider imposing indirect liability for others' wrongful copying. The first case is Kalem Co. v. Harper Brothers, [Kalem] where in 1911 the Court recognized that one who causes another to commit copyright infringement by advertising is also liable for infringement. [Kalem, 62] The second case is Sony Corp. of America v. Universal City Studios, Inc. [Sony] where in 1984 the Court acknowledged indirect liability for copyright infringement, but limited its application. The Court decided that contributory infringement is actionable. Then the Court adopted patent law's staple article of commerce doctrine to deny liability for contributory infringement if the product is capable of substantial noninfringing activity. The third case is Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. [Grokster], where in 2005 the Court extended indirect liability for copyright infringement by adopting another patent doctrine, the inducement theory, to impose liability on marketers of peer to peer file sharing software. Before the Supreme Court's decision in Grokster, two circuit courts, the Ninth and the Seventh, had interpreted and applied Kalem's and Sony's jusicial law on indirect liability for copyright infringement. The Ninth Circuit in A & M Records, Inc. v. Napster, Inc. [Napster], had given internet service providers an opportunity to avoid contributory copyright liability by recognizing Sony's limitations on contributory liability. The Ninth Circuit found Napster contributorily liable for copyright infringement. The Ninth Circuit also considered Grokster before it was reviewed by the Supreme Court. Grokster provided a service that lacked a central server and did not actively participate in connecting the provider with the copier. So the Ninth Circuit found that Grokster was not liable for contributory copyright infringement. The Seventh Circuit, however, had a different interpretation of Sony which resulted in finding contributory copyright infringement under similar factual circumstances in In re Aimster Copyright Litigation [Aimster]. …