Unwinding Sony

The Impact of Codification on the Judicial Development of Copyright

“…189 Given the clear statements of desire to codify existing law and the absence of any indication of any intent to import the patent law standard, the Supreme Court would have been better served to turn to the pre-1976 copyright law as a guide. 190 The Grokster Court followed suit by relying primarily on patent law. 191 It did augment the patent analogy with a discussion of pre-1976 copyright cases.…”

“…191 It did augment the patent analogy with a discussion of pre-1976 copyright cases. 192 The borrowing has become reciprocal. Patent cases have begun to borrow back from copyright law despite their differences (although to the extent the copyright precedents on third-party liability are in effect construing patent law, this reverse borrowing is unproblematic).…”

“…193 Any commonality that may exist between copyright and patent with respect to third-party liability stems from the fact that they draw from the same source: tort law. 194 Some courts have recognized that third-party liability is properly based in tort law and turned to the pre-1976 copyright cases rather than patent law. 195 Analyzing how this difference in analytical approach would change copyright law is beyond the scope of this chapter.…”