Legal Realism in Action: Indirect Copyright Liability's Continuing Tort Framework and Sony's De Facto Demise

Abstract

Tort Law Trumps Staple Article of Commerce Doctrine 145 commentator notes, "[clonsumer electronics and computer makers see this ruling as having protected the development and sale of everything from Apple Computer's iPod to an ordinary PC." 6 The Supreme Court's recent unquestioning reliance on Sony to address the challenges of the digital age in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.' reinforces this perception. Yet, when one looks to cases decided since Sony, legislative enactments, and the decisions of technology companies in the marketplace, a different reality emerges. With but one exception 8 (itself effectively overruled by later amendment 9), no reported decision has found the Sony safe harbor to immunize a technology company accused of indirect liability. In fact, the developers and distributors of Napster, Aimster, Grokster, Morpheus, and KaZaA-peer-to-peer systems that have noninfringing uses-have all been held liable for contributory infringement, Sony notwithstanding. Nor has the U.S. Congress adhered to Sony; instead, its amendments since that case was handed down have expanded copyright liability to reach technologies that are capable of dual use. Technology companies (such as YouTube, BitTorrent, TiVo, and ReplayTV) behave as though they bear responsibility for system designs that create an unreasonable risk of copyright infringement by users of their technology. As explicated in a prior article," the Supreme Court made several critical mistakes in its Sony decision by importing patent law's "staple article of commerce" safe harbor into