paper in PDF
This new version of that discusses its history and where we go after Grokster
With the Supreme Court's unanimous opinion in MGM v. Grokster, this paper shifts from an advocacy piece to a historical work. The Court made clear that inducement is part of copyright law, as the paper first suggested:
For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Sony Revisited was perhaps the first paper to examine whether inducement of copyright infringement is part of United States copyright law in light of Sony and other decisions. It not only took a new look at the Sony decision, but also looked at how Sony came about by reviewing the drafts of the opinion and dissent, the briefs and oral arguments, and the correspondence between the justices as the decision developed.
Two earlier versions of the paper are available in addition to the current version. The June 6, 2004 version was the first version that was generally available. The August 26, 2004 version, included a discussion of S. 2560, the Induce Act, which is unlikely to be reintroduced in Congress. Also available is my amicus brief in Grokster, based on this paper.
This page was last revised on July 22, 2005.
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