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Third-party Copyright Liability after Grokster

Abstract This Article, the original version of which was published in the Minnesota Law Review (vol. 91, pp. 184 – 240), studies the construction of third party copyright liability after the recent Supreme Court case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. This inquiry is important because third party copyright liability has become a controversial area of law that affects the viability of entire industries. Unfortunately, the law governing third party copyright liability is unclear. Grokster involved a claim of third party liability against defendants whose technology supported the sharing of music over the Internet, and it represents the Supreme Court's attempt to bring coherence to the relevant law. Grokster is a difficult case to understand. It added a new cause of action for inducement to the law of third party copyright liability, but the meaning of inducement is unclear, especially when one considers the incoherent structure of pre-Grokster law. Future courts will find it challenging to interpret Grokster in a way that creates an effective, coherent structure for the law third party copyright liability. This Article was among the first to comprehensively analyze Grokster and its effect on the theory and construction of third party copyright liability in the United States. This effort includes a survey of pre-Grokster law, the application of tort theory to expose the structure of conflicts in the law, an explanation of the rationale and implications of Grokster, and the construction of a coherent framework for third party copyright liability. The Article concludes that Grokster made important theoretical and practical choices about the law that are appropriately sensitive to the costs and benefits of third party copyright liability.