Chapter 4: The Targeted Response
By the time Grokster reached the Supreme Court, the US secondary liability law had become hopelessly tangled. This was not helped by the very different approaches taken by the Seventh and Ninth Circuits, which Yen describes as having “rendered the law incoherent”.1 Despite years of litigation, “[t]he only issue on which the lower courts had ruled was whether Grokster qualified for the Sony safe harbor defense to MGM’s contributory infringement claim as to current versions of its software.”2 Against this backdrop the plaintiffs sought and were granted certiorari from the US Supreme Court.3 This chapter explores the new law created in specific response to P2P file sharing, with a close examination of the way in which the US Supreme Court decision dealt with the tangled mess woven by the earlier decisions. As the highest court in the US geared up to consider secondary liability issues for the first time in two decades (and code-based generative technologies for the first time ever), the matter assumed tremendous significance. Close to 100 amicus briefs were filed, among them arguments advanced by technology companies, content providers, and experts in law, economics and technology.4 Everyone was determined to have a say in the future interpretation of Sony. Everyone, it turned out, except the Supreme Court itself, which, unable to determine exactly what the doctrine meant, passed up the opportunity to resolve the circuit split and decided the matter on a different theory of liability altogether. The Court unanimously reversed the Ninth Circuit’s...
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