Copyfights to Come: The Ninth Circuit's Contributory Copyright Infringement Analysis and the Inverse Grokster Dilemma

Abstract:     
In recent years, courts have been presented with difficult questions of how copyright law developed for an analog world should be applied in cases involving emerging digital technologies. Federal courts of appeals have disagreed over how to apply the U.S. Supreme Court's Sony Corp. of America v. Universal City Studios, Inc. decision and the common-law doctrine of contributory liability for copyright infringement to developers of such technologies. The U.S. Supreme Court's recent decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. resolved this dispute as to those developers who induce others to infringe copyrights without necessarily having actual knowledge of the direct infringement themselves.

This comment addresses a question left unanswered by the Grokster Court: how does Sony's limitation on contributory liability apply to a good-faith developer of cutting-edge technologies who does not induce infringement, yet operates with actual knowledge of infringement by others? It suggests that this "inverse Grokster" dilemma will likely be the next front in the "copyfight" between old and new media, this time pitting consumer-oriented technology companies against copyright owners. The comment concludes by proposing a balancing test to be adopted by the Ninth Circuit Court of Appeals that harmonizes the court's precedent with the Supreme Court's ruling in Grokster, yet also accounts for the public and private interests at issue in these "inverse Grokster" cases.

Keywords: copyright, napster, grokster, sony, media, youtube, google, ninth circuit, infringement, technology, good faith, innovator, actual knowledge

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