1.  Before the Supreme Court's decision in Grokster, there were three tests for secondary liability in copyright law: (1) the “traditional” two-part test for contributory infringement, discussed in Fonovisa, (2) the traditional two-part test for vicarious liability, also discussed in Fonovisa, and (3) the Sony test for contributory infringement liability.  What are the elements of or standards for each of these three tests?


2.  What is the precise source of law for each of the three tests?  Are they matters of statutory interpretation or federal common law? Do they derive from precise application of statutory text in light of legislative history, or from general principles refined by analogy and distinction?  If the former, from what statutory text does each derive?  Does the copyright statute mention secondary liability explicitly?  If the latter, what are the general principles?


3.   By themselves, are the three tests coherent, consistent and comprehensive?  Do they explain, for example, when to apply the Sony rule and when to apply the “traditional” rule in assessing contributory fringement?  Was that a question left unresolved in Sony and Napster I?  Are the three tests comprehensive in the sense that there is no other basis for secondary liability?


4.  Did the Grokster court apply any of these three tests?  Or did it announce a new rule?  If the latter, what rule and where did it come from?  Was the rule a matter of statutory interpretation and textual exegesis or of federal common law?  If the former, on what specific words in the statute did it depend?  If the latter, what general rule or legal principle was involved?


5 .  It is black-letter law that copyright infringement is a strict-liability tort, independent of the defendant’s state of mind.  See, e.g., Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198-199, 51 S.Ct. 410, 75 L.Ed. 971, 9 U.S.P.Q. (BNA) 17 (1931) (“Intention to infringe [a copyright] is not essential under the Act. . . .  And knowledge of the particular selection to be played or received is immaterial.  One who hires an orchestra for a public performance for profit is not relieved from a charge of infringement merely because he does not select the particular program to be played.”)  (Citations omitted.); De Acosta v. Brown, 146 F.2d 408, 410, 411-412, 63 U.S.P.Q. (BNA) 311 (2d Cir. 1944), cert. denied 325 U.S. 862 (1945).  See generally, 1 Dratler, Intellectual Property Law: Commercial, Creative, and Industrial Property § 1.07[2][a] (Law Journal Press 1991 & Supps.), available on line on LEXIS at the following path: Secondary Legal : View More Sources : Law Journal Press: [title of treatise] : Chapter 1 : Section 1.07.

Can the same be said of secondary liability for copyright infringement?  Is that a strict-liability tort, or does it require some sort of culpability?  Make a table of all the forms of secondary liability for copyright infringement of which you are aware, and list the level of culpability (state of mind), if any, required for each.  What about vicarious liability?  Does it fit the general pattern?  Can vicarious liability be viewed as based on presumed or implied culpability?


6.  Ultimately the Grokster Court, unlike the Sony Court, found secondary liability.  Can you distinguish the two cases on their facts?  How strong is the distinction?  Could the courts have decided Grokster by distinction only?  


7.   Is there any question whether the Grokster defendants’ activities were a “but for” cause of users’ infringement?  The users could not have shared infringing files without the help of the software that they downloaded from the defendants’ Websites, could they?

Yet is “but for” the proper test for material contribution in assessing contributory infringement of copyright?  Does any of the cases we have studied support a “but for” test, or does each require something more than “but for” causation?  If more is required, what is it, and is it present in Grokster?


8.  In the Aimster decision, which Ninth Circuit in Grokster explicitly refused to follow, the Seventh Circuit dealt with a Website much like Napster’s and Grokster’s.  There were two salient differences, however.  First, unlike Napster, Aimster actively encouraged infringement by providing tutorials involving infringing works.  It also offered a “club” for $4.95 per month that touted file sharing for the top forty hits, nearly all of which were under copyright.  See In re Aimster Copyright Litigation, 334 F.3d 643, 651-652, 67 U.S.P.Q.2d (BNA) 1233 (7th Cir. 2003) (Posner, J.), cert. denied 124 S.Ct. 1069 (2004).  Second, unlike Napster’s, Aimster’s peer-to-peer file-sharing software encrypted the files that users shared, so Aimster itself could not, even in theory, tell whether or not those files contained infringing material.  See id., 334 F.3d at 646.

Analogize or distinguish Aimster to/from Grokster on the facts.  Could the Grokster court have decided that case by analogizing Aimster on its facts?  How convincing would that analogy have been?

In Aimster Judge Posner made short work of the defendant’s argument that the encryption technology prevented it from having the knowledge of infringement necessary for contributory liability.  Characterizing the lack of knowledge arising from encryption as “willful blindness,” he implied it was merely a transparent ploy to avoid liability, which the law would not countenance.  See id., 334 F.3d at 650.   In Grokster, the lack of a central directory or index of files also precluded the defendants there from having knowledge of what files their users shared.  Was that feature a matter of “willful blindness” also?  Was it a transparent ploy to avoid liability?


9.  The Supreme Court's opinion in Grokster was unanimous.  What was its holding?  Why did two sets of three Justices, led by Justices Ginsburg and Breyer, respectively, subscribe to concurring opinions?  What did they hope to accomplish?  Did they succeed?  Or did the fact that they split three-three suggest that their efforts at clarification might not be easily and universally accepted?


10.  The unanimous Grokster Court made clear that Sony is not a general rule of immunity but a case largely limited to its facts.  After Grokster, when does Sony’s rule apply, and when does it not?

Is Sony’s rule easy to apply?  Isn’t is hard for courts to tell when a product or technology is “capable of substantial noninfringing uses”?  Doesn’t the ceaseless and rapid advance of technology make it hard even for Congress to do so?

Then in the Sony rule a good, clear, administrable rule?  Or would it be better to resolve each case of secondary liability on its facts, by analogy and distinction?  Which approach would produce the clearest, most predictable, most comprehensible decisions?  Which approach would give ordinary citizens the best chance of understanding the rationale for decisions?  Which approach would best promote public understanding of and compliance with copyright law?