Infringement In The Cloud

The Sony standard is very broad on its face. Almost any technology has at least some substantial noninfringing use (leaving aside how it is actually used in the real world), so an expansive reading of Sony would sharply limit the scope of contributory infringement. For some time that was exactly how the case was interpreted, but subsequent developments in copyright law (including the passage of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. '512 (1998)) and changes in the business and technology landscape (including the rise of file sharing sites like Napster and Grokster) eventually caused the pendulum to swing the other way. Twenty years later, in 2005, the Supreme Court returned to the issue in Metro-Goldwyn-Mayer Studios v. Grokster, 545 U.S. 913, 918-19 (2005), to decide “under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product.”

By 2005, the term “file sharing” had become largely synonymous (at least in the public imagination) with “music piracy,” and although Grokster and others had successfully defended their services in some lower courts under the Sony standard, the Supreme Court reversed those wins. The Court held that a file sharing service could be held liable for contributory infringement where its product was “overwhelmingly used to infringe” and it encouraged and profited from that infringement. Interestingly, the fragmented Grokster court split over whether its decision required or implied a reconsideration of the Sony doctrine, and that question remains alive today, as the pendulum continues to swing.