Journal of Intellectual Property Rights

Vol 11, September 2006, pp 318-325

An Analysis of the Theory of Contributory Infringement

Sneha Jha† and Samar Jha
NALSAR University of Law, 3-4-761, Barkatpura, Hyderabad 500 027
Received 9 July 2006, revised 16 August 2006

The paper deals with contributory infringement of copyright which has recently been highlighted in various litigations
involving P2P technology, one of the latest being the MGM v Grokster case. A comparison of this case with the Sony and
Napster cases reveals a contradiction in the decisions taken by the US Supreme court. The pro-right holder decision in the
Grokster case may curb innovators and tilt the balance between the conflicting interests of protection and innovation.

Keywords: Copyright, contributory infringement, peer-to-peer

Technology related to music has come a long way Grokster to be liable of contributory infringement.
over the years, beginning with sheet music followed The import of contributory infringement liability to
by piano rolls, phonograph records, analog tapes, and copyright law has led to conflicting decisions for
eventually compact discs.1 However, such is the pace more than two decades now.
of technological advancement that compact discs are
gradually being taken over by the peer-to-peer (P2P) Copyright Infringement
network, which allows for (1) instant access to files Article 27, paragraph 2 of the Universal
that would be easily available through the Internet; (2) Declaration of Human Rights (UDHR) provides as a
copying of files, copies of excellent quality, tough to basic right that ‘[e]veryone has the right to the
distinguish from the original; (3) distribution at a cost protection of the moral and material interests resulting
that is negligible.1 from any scientific, literary or artistic production of
Almost a year ago, the Supreme Court of US gave which he is the author’.3 This primary international
its much-awaited verdict in the case of Metro- law can be interpreted to guarantee protection against
Goldwyn-Mayer v Grokster Ltd.2 The Court held copyright infringement.
Grokster and StreamCast, the distributors of popular
Many countries too have relevant safeguards in
P2P file sharing software, liable for secondary or
place. The German constitution, for example,
contributory copyright infringement. The reasoning
guarantees the right to property as a basic right.
on which the Court acted on was that ‘one who
Copyright is subject to this constitutional right of
distributes a device with the object of promoting its
property. The details of the copyright laws are
use to infringe copyright, as shown by clear
incorporated in the German Copyright Act. France
expression or other affirmative steps taken to foster
and Italy provide for similar rights. Moreover, the
infringement, is liable for the resulting acts of
Court of Justice of the European Community has
infringement by third parties’.2
recognised copyright as being within the range of the
This decision remains a significant part of the
basic right of property.
intellectual property discourse because of the
principle enunciated therein, that of contributory Copyright protection in the United States emanates
infringement liability. This concept is not novel to US from the Constitution itself. It is the first document
legal history, but the future import of contributory that authorised the Congress to promote the progress
infringement liability and interpretation given by the of science and other useful arts and thereby enshrined
Supreme Court need to be critically analysed, exclusive protection to the authors and inventors with
especially in light of the fact that both District Court respect to their work.4 Pursuant to this, the US
and Ninth Circuit Court of Appeal did not consider Copyright Act (the Act) was passed in the year 1976
_____________ (ref. 5) The Act only envisages punitive action in case
†
Email: Corresponding author: [email protected] of direct infringement.
 JHA & JHA: AN ANALYSIS OF THE THEORY OF CONTRIBUTORY INFRINGEMENT 319

Contributory Infringement be charged with constructive knowledge of

There are two forms of secondary copyright infringement.
infringement, namely, vicarious and contributory
infringement. The concept of contributory Material Contribution
infringement liability stems from law of torts. It is The other primary requirement is that the third
based on the principle that one who directly party should have materially contributed to the
contributes to another’s infringement should be held primary infringement. The court looks into whether
liable. It is a judicial tool, which was evolved to fill in the defendant provided an integral service to the
the lacuna created by the legislature. The purpose of infringer thus, facilitating the infringement13 or the
contributory copyright liability is to ‘empower defendant was just a ‘passive conduit’14 for the
copyright owners to sue the root cause of numerous infringing activity.
infringements,’ rather than having to sue a ‘multitude
of individuals’ for direct infringements.6 Judicial Precedents in the US
After the judgment of Grokster, there is a whole Gershwin Publishing Corp v Columbia Artists Management
Inc15
range of critical opinion that believes that the line
The first case where the concept was articulately
taken in the case on contributory infringement goes
expressed was the Gershwin case.15 The US Court of
against Article 1, Section 8, of the US Constitution.
Appeals for the Second Circuit examined whether a
The reason appended to such a belief is that the
concert promoter should be held liable, when
Constitution of US guarantees that the ‘creators of
musicians performing at the promoter’s concerts
expressive works are given a limited monopoly not as
played copyright-protected works, thereby infringing
an individual reward, but rather as an incentive for the
on the copyright owners’ exclusive rights of public
creation of future creative works.’7 Therefore, what is
performance. The Court ascertained liability under the
now happening is that in the garb of copyright
theories of vicarious and contributory infringement
protection excessive rights are being conferred, which
liability. The Court of Appeals affirmed the decision
may have a negative impact on the growth of
given by the District Court. It held that, the fact that
communication technologies.
Columbia Artists Management Inc. (CAMI) knew that
Two specific standards need to be met in order to copyrighted works were being performed at the Port
import contributory infringement liability: Washington concert and that neither the local
association nor the performing artists could secure a
Knowledge or Intent on the Part of Infringer copyright licence, was sufficient to hold CAMI
Unlike direct infringement,8 contributory responsible for contributory infringement. Merely
infringement emphasises on knowledge or the intent because Columbia Artists Management Inc. (CAMI)
of the infringer. It is necessary for the person to have had no formal power to control either the local
‘specific’ knowledge of the infringing activity. The association or the artists for whom it served as agent
word specific knowledge is emphasized because it is did not imply absence of intent. It is clear that the
to be noted that contributory liability requires that the local association depended upon CAMI for direction
secondary infringer ‘know or have reason to know’ of in matters such as this; moreover, the fact that CAMI
direct infringement.9 General knowledge that was in a position to police the infringing conduct of
infringement is likely to occur or is in fact in progess, its artists, and it derived substantial financial benefit
is not sufficient.10 It is necessary to have actual and from the actions of the primary infringers, points
constructive knowledge.9 Secondly, there should be towards the fact it was responsible vicariously as well.
an attempt by the third party to block such
infringement. If a computer system operator learns of Sony Corporation of America v Universal City Studios Inc16
specific infringing material available on his system Sony had come out with its new Betamax video
and fails to purge such material from the system, the tape recorders (VTRs), which was different from the
operator knows of and contributes to direct video cassette player because it had the function of
infringement.11 Thus, though the court would look recording television programmes. Universal City
into the evidence of defendant’s actual knowledge Studios Inc and Walt Disney Production held
arising from the defendant’s conduct12, the product if copyright over various motion pictures and
found to have substantial non-infringing use will not audiovisual works.17 The home consumer of the VTR
320 J INTELLEC PROP RIGHTS, SEPTMBER 2006

was apparently responsible for an infringing act, in infringing and non-infringing use, hence, Sony could
using the VTR to record copyrighted television not be held liable for contributory infringement.
broadcasts.18 The respondents brought an action
A&M Records Inc v Napster Inc25
against petitioners in Federal District Court, alleging
One of the most controversial cases to have
that VTR consumers had recorded some of
surfaced in the judicial history of US is the one
respondents’ copyrighted works that had been
between the Recording Industry of America (RIAA)
exhibited on commercially sponsored television and
and Napster. In July 1999, the plaintiff’s, namely,
thereby infringed respondents’ copyrights, and further
record companies and music publishers brought a
those petitioners were liable for such copyright
copyright infringement action against Napster, a P2P
infringement because of their marketing of the
network company that was engaged in facilitating the
VTR’s.16 The case in the district court was dismissed
upload and download of MP3 files by its users. The
primarily based on fair use principle.19 However, the
plaintiff alleged that Napster was liable for
Ninth Circuit reversed the decision held the plaintiff
contributory infringement along with other allegations
to be liable for contributory infringement.20
of vicarious infringement. Napster provided the users
On appeal, the Supreme Court in turn reversed the with the MusicShare software that enabled the users
Ninth Circuit Decision denying all counts of for uploading and downloading songs from the P2P
contributory infringement against Sony, namely, the network. It is pertinent to note that Napster provided
requirement of constructive knowledge and position technical support for the indexing and searching of
of control. The Court relied on traditional patent laws’ MP3 files.26 The free software provided by Napster
staple article of commerce doctrine21 that states that ‘MusicShare’ enabled the users to (1) make MP3
distribution of a component of a patented device will music files stored on individual computer hard drives
not violate the patent if it is suitable for use in other available for copying by other Napster users, (2)
ways. The Court thus held that if a product is capable search for MP3 music files stored on other users’
of other non-infringing and ‘substantially lawful’ computers, and (3) transfer exact copies of the
uses, the producer could not be held liable. The staple contents of other users’ MP3 files from one computer
article of commerce limits liability to instances of to another via the Internet.27 There was further
more acute fault than the mere understanding that evidence of Napster’s active involvement with the
one’s products will be misused. Consequently, the users as it provided technical support for the indexing
Betamax VTR was held to have substantial non- and searching of MP3 files, as well as for its other
infringing use and Sony was not liable of contributory functions, including a chat room, where users could
infringement. The Court also looked into the time- meet to discuss music, and a directory where
shifting doctrine that occurs when a television viewer participating artists could provide information about
records a particular programme to view it later. The their music.27 On being sued by the copyright owners
Court stated that, ‘Each of the respondents owns a in the Northern District of California on counts of
large inventory of valuable copyrights, but in the total contributory and vicarious infringement, Napster
spectrum of television programming their combined contented that the Sony doctrine shielded it from
market share is small. The exact percentage is not secondary liability because its software and network
specified, but it is well below 10 per cent.’22 The were capable of substantial non-infringing uses.28 The
Court was of the opinion that holding Sony liable for District Court granted preliminary injunction in
authorized time shifting would have a negative effect favour of the plaintiff. However, thereafter a startling
on the production and distribution of VCRs, those fact that came out was that about 87 per cent of the
copyright holders who authorized time shifting would material available on Napster was copyrighted and
be frustrated in their attempts to reach more viewers that the plaintiffs held the copyrights on about 70 per
by doing so.23 Regarding unauthorised time shifting, cent of this material, which clearly established the
the Court held that, ‘even unauthorised uses of a direct infringement prong.29
copyrighted work are not necessarily infringing. An On appeal, the Ninth Circuit Court also concurred
unlicensed use of the copyright is not an infringement with the District Court in their opinion. The Court
unless it conflicts with one of the specific exclusive clarified the analysis of Napster’s contributory
rights conferred by the copyright statute.’24 Thus, it liability by setting out the two familiar elements of
was held that the Betamax VTR had both substantial contributory infringement: (1) knowledge of a direct
 JHA & JHA: AN ANALYSIS OF THE THEORY OF CONTRIBUTORY INFRINGEMENT 321

infringement and (2) a material contribution to that the Court of Appeals (Ninth Circuit Court)
infringement.30 The court concluded that regarding distinguished Grokster from Napster. The software
knowledge, Napster had constructive knowledge of distributed by Grokster and StreamCast shared the
the infringement that was taking place and they had same conceptual framework of decentralized storage
the requisite means to stop infringement by denying and search without the use of a centralized computer
access.13 Regarding material contribution, the judges server for file hosting or processing search requests33,
believed that Napster was facilitating and helping the while Napster had a centralized indexing system.34
users by maintaining indexing central servers and Napster managed each search request through its
providing technical support to its users.30 The Court server and thus, had the knowledge of the infringing
stated, ‘without the support services defendant materials being downloaded. All the three firms used
provides, Napster users could not find and download P2P system35, but the key difference in the indexing
the music they want with the ease of which defendant modes were distinct. In this particular case,
boasts.’13 Thus, the Court held Napster liable for Streamcast used the decentralized index model by
contributory infringement and subsequently using its own branded Morpheus version of the open
injunction was granted against the P2P network. source Gnutella code, and Grokster operated as per
the supernode indexing system and used the
MGM Studios Inc v Grokster Ltd2 FastTrack technology developed by others. Hence, to
Grokster and Streamcast were companies that zero down on the copied files in the case of the
distributed free software that allowed computer users technologies used by Grokster and Streamcast, was a
to share electronic files through P2P network. difficult job. Accordingly, the Court of Appeals
Grokster used FastTrack technology whereas denied injunction to the plaintiffs, held Grokster, and
StreamCast relied on Morpheus. The users of the P2P other defendants not liable of contributory
network were involved in downloading copyrighted infringement.
materials through the network. The copyrighted The matter went on appeal to the Supreme Court,
materials included numerous cinematographic films which overturned the decision of lower courts and
and songs. The petitioners MGM complained that P2P held the P2P networks liable for contributory
software distributed by respondents, Grokster and infringement. The Supreme Court claimed that they
StreamCast, were used to transfer files for which they merely ‘clarified’ their stand on the Sony case and did
held the copyright.31 The District Court gave a not expressly overrule it (ironically Justice Sandra
summary judgment holding Grokster company not O’Connor, who was part of the majority decision in
liable for contributory or vicarious infringement of Sony, was also part of the seven-judge bench in the
copyright. Later, the US Court of Appeal of the Ninth Grokster case). The Supreme Court shifted the burden
Circuit upheld the decision saying the elements on the lower courts for wrongly construing the
regarding contributory or vicarious infringement were decision of the Sony case and said that the Court of
not satisfied in this case and that the company was not Appeals displaced the secondary liability theory. The
liable. The Ninth Circuit Court placed its reliance Court in this regard stated that, ‘nothing in Sony
mainly on the Sony case.32 The Court distinguished requires courts to ignore evidence of intent to promote
the case at hand from that of Napster’s in terms of the infringement if such evidence exists.’36 The Supreme
technology that was being used for sharing. The Ninth Court relied on following four contentions to arrive
Circuit Court relied upon the Betamax defence onto the decision:
holding that distribution of a commercial product
capable of substantial non-infringing uses could not (1) Non-filtration of copyrighted material - The
give rise to contributory liability for infringement raison d'être that the Court relied on to
unless the distributor had actual knowledge of specific adduce the intent on part of Grokster and
instances of infringement and failed to act on that StreamCast to indulge in infringing usages
knowledge. The fact that the software was capable of was the absence of any constructive act to
substantial non-infringing uses, in the Ninth Circuit’s filter out the contents of infringing works.
view, implied that Grokster and StreamCast were not (2) Taking over from Napster - The Supreme
liable, because they had no such actual knowledge Court opined that the respondents aimed to
owing to the decentralized architecture of their satisfy the sudden spurt in demand that had
software. Elaborating upon the centralized structure, been created due to the closure of Napster.
322 J INTELLEC PROP RIGHTS, SEPTMBER 2006

The court stated that Grokster advertised Canada

itself as an alternative to Napster.37 This Even before Gershwin case arose in US, Canada
according to the Court thus, proved the had to confront a similar situation in 1953. In Muzak
intent on part of Grokster to indulge in non- Corporation v Composers, Authors and Publishers
infringing activities. Association of Canada Limited40, Muzak had leased
(3) Profit motive - The third assertion made by out sound recordings to a broadcasting corporation,
the Court with regard to inferring intent of which used the recordings for public performances for
the distributor of a product was based on the which it did not possess license.41 The majority of the
advertising and promotional model used. In judges of Supreme Court of Canada refused to
the language of the Court, ‘advertising an construe liability upon Muzak as they did not believe
infringing use or instructing how to engage that ‘authorization’ could be inferred on the part of
in an infringing use, shows an affirmative Muzak as they did nothing constructively to allow
intent that the product be used to infringe.’ such performance. This was in tune with the earlier
(4) Practical alternative - Lastly, the gigantic Privy Council decision, which came in the case of
scale at which the electronic file sharing was Vigneux v Canadian Performing Right Society
going on according to the Supreme Court, Limited.42 In that case, the owner of an ‘electrically
meant that the distributor was necessarily operated gramophone’ (a jukebox) had rented the
aware of the unlawful activity. Moreover, machine with its sound recordings to a restaurant
since it would be impossible in such a case where customers would start public performances by
to enforce effectively against all direct inserting coins into the machine. The Judicial
infringers, the only practical alternative was Committee of the Privy Council found that the
to go against the distributor of the copying providers of the jukebox, who were receiving a flat
device for secondary liability on a theory of weekly rental fee, were not actually authorizing the
contributory or vicarious infringement.38 public performance of the musical works because ‘[t]
Thus, the US Supreme Court made a dual-limbed hey had no control over the use of the machine; they
decision that attempted to steer a careful course had no voice as to whether at any particular time it
between the interests of content industries and was to be available to the restaurant customers or
technologists.39 The fact that the software was capable not.’41, 42
of substantial non-infringing uses was completely The case did not discuss contributory infringement
undermined by the Court. Moreover, the Court left liability. However, it is significant that absence of
certain questions unanswered. It failed to state in requisite knowledge or intent was a factor that greatly
precise terms when could the Sony test be applied to influenced the judges. It can be argued that had the
infringement-enabling software. Thus, leaving an case arisen now, judges might have relied upon the
open question of when a product would be found with principle of contributory infringement.
enough non-infringing uses to mitigate any user
United Kingdom
infringement.18 Also, it did not clarify what role,
The Copyright, Designs and Patent Act of 1988
knowledge of unlawful activity had in imposing
confers certain exclusive rights on the copyright
contributory infringement. The above arguments are
holder like the reproduction right, the distribution
illustrative of the fact that the US Supreme Court had
right; the performance right, communicate the work to
probably not interpreted the activities of both
the public-the new communication right, which
Grokster and StreamCast correctly.
supersedes the old broadcasting and inclusion in a
Jurisprudence in Other Countries cable programme right, the adaptation right.43
The jurisprudence on contributory infringement has
not been deliberated upon in most of the countries. CBS Songs Ltd v Amstrad Consumer Electronics Plc44
However, the fact that contributory infringement is a This case is similar to the Sony case discussed
common law principle, as it has been derived from earlier, and happened after Sony. In this particular
tort law, implies that other countries following the case, the House of Lords had to consider whether
common law principle may also rely upon it. Other Amstrad had authorized a breach of the 1956
relevant caselaws from other countries are discussed Copyright Act by selling and advertising twin-deck
below: tape recorders, which it knew would probably be used
 JHA & JHA: AN ANALYSIS OF THE THEORY OF CONTRIBUTORY INFRINGEMENT 323

for illicit copying although they could also be used for records could be placed in the machine. The Court
other non-infringing purposes. The defendants argued held that to have the power to prevent an infringement
that Amstrad’s sale and advertising campaign could be regarded as a component, or even a
amounted to authorization on its part, as it necessarily corollary, of having the power to authorize a
implied that Amstrad was facilitating illicit copying. copyright use. This clearly highlights the fact that
However, both the Court of Appeal and the House of intent and material, which are the two fundamental
Lords had a different opinion. They said that criteria for construing contributory infringement, were
authorization required express or implied grant to do the basis of Court’s reasoning.
the act, which was not the case here. Amstrad’s
advertising campaign, which drew attention to Netherlands
features that made illegal copying easier nevertheless In November 2001, Buma/Stemra, a licensing body
did not involve a grant or purported grant of authority representing composers, songwriters, and music
to copy because copyright warnings made this lack of publishers in the Netherlands, filed a suit against
authority clear to end users. KaZaA to prevent distribution of latter’s file-sharing
‘Lord Templeman held that neither the design of software (the KaZaA Media Desktop), which enabled
the product nor Amstrad’s advertising campaign users to search and download files from other KaZaA
could be construed as authorizing unlawful copying, users. This case again saw diverse opinion from the
because the ultimate decision to copy was made by District Court to the Court of Appeals. District Courts
the user.43 The ratio laid down by House of Lords in ruling came in favour of Buma/Strema, which was
Amstrad was that, where an article is capable of finally reversed by the Court of Appeals.
facilitating infringing as well as non-infringing Buma/Strema again appealed to the Supreme Court.
copying, the supplier must possess more than just However, they turned down the appeal and upheld the
generalized knowledge that illicit copying will occur verdict of Court of Appeals. The Court of Appeals
before it will be held liable. Secondly, it was proceeded on the reasoning that ‘the illegal acts had
generally understood that the reference to an article not been carried out by KaZaA, but by the users of
‘specifically designed or adapted for making copies’ KaZaA’s software, and providing the means for
was directed at articles such as photographic publication or reproduction of a work is not an act of
negatives, moulds, and master recordings that are publication or reproduction per se.’47 Moreover, the
designed to make copies of specific works, rather than Court said that KaZaA application was not dependant
generic copying equipment such as photocopiers or on any intervention by KaZaA and that closing down
tape recorders.43 The decision took a stand similar to KaZaA would not prevent the search and exchange of
that taken by the US Supreme Court in the Sony case. files-if anything it would become more difficult to
trace this illegal activity, therefore, it would be unfair
Australia to impute the liability on KaZaA. This case happened
In Australasian Performing Right Association Ltd v prior to Grokster and after Napster. The reasoning
Jain,45 an Australian court came to the conclusion that adopted by the Court of Appeals seems to have been
a tavern owner, who allowed the unlicensed influenced by Napster. The fact that KaZaA did not
performance of certain copyrighted works, was liable have centralized indexing implied that they did not
for authorizing the infringement of copyright. The have specific knowledge as to what was being
Court held that Jain had authorized the infringing exchanged and copied, unlike Napster.
performances because it was within his power to
prevent the infringements and he must have known it Conclusion
was likely that the performances would infringe It is evident from the above discussion that
copyright. A similar stand was adopted earlier in contributory infringement has no fixed terrain. The
Winstone v Wurlitzer Automatic Phonograph Co of decision of the Supreme Court in Grokster gives an
Australia Pty46, a case whose facts were similar to inference about the over-arching influence of the big
those in the Canadian case of Vigneux. The Court, corporations on the regime of intellectual property
however, came to a different conclusion from that of rights (IPR). This judgment has created a cloud of
the Privy Council on the basis that the owner of the uncertainty which could create a depreciation of
jukebox shared in the revenue derived from the innovation in the field of technology as the innovators
operation of the jukebox and could decide what would now have to think twice before getting
324 J INTELLEC PROP RIGHTS, SEPTMBER 2006

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with contributory infringement. Nevertheless, the (2) musical works including any accompanying words;
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graphic, and sculptural works; (6) motion pictures and other
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464 US (1984) 417 at 421- 422.
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 JHA & JHA: AN ANALYSIS OF THE THEORY OF CONTRIBUTORY INFRINGEMENT 325

Chicago-Kent Journal of Intellectual Property, 6 (2006), server, hence an operator in a system with a centralized
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19 Myrick R M, Peer-to-peer and substantial non-infringing use: identify user information, the operator possesses the means
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peer-to-peer context, Berkeley Technology Law Journal, 20 launched a software program called Swaptor. It was on the
(2005) 487. lines of Napster’s own program, and inserted digital codes
22 Sony Corporation of America v Universal City Studios Inc, into its website so that computer users using web search
464 US (1984) 417 at 443. engines to look for ‘Napster’ would be directed to the
23 Termini M, Time-Shifting in The Internet Age: Peer-To-Peer Grokster website, and therefore, what it intended to do then
Sharing of Television Content, Columbia Journal of Law & was capture the market of Napster.
Social Problems, 38 (2005) 422. 38 Metro-Goldwyn-Mayer v Grokster Ltd, 125 S Ct 2764 (2005)
24 Sony Corporation of America v Universal City Studios Inc, at 2776.
464 US 417 at 447. 39 Chen R G, Rewinding Sony: An inducement theory of
25 A&M Records Inc v Napster Inc, 239 F 3d 1004. secondary liability, (2005) European Intellectual Property
26 Akester P, Copyright and the P2P Challenge, European Review, 27(11) (2005) 428.
Intellectual Property Review, 27(3) (2005) 106-112. 40 Muzak Corporation v Composers, Authors and Publishers
27 A&M Records Inc v Napster Inc, 239 F 3d 1004 at 1011. Association of Canada Limited, [1953] SCR 182.
28 Andrews T K, Control content, not innovation: Why 41 Gendreau Y, Authorization revisited, Journal of Copyright
Hollywood should embrace peer-to- peer technology despite Society of the USA, 48 (3) (2001) 344.
the MGM v Grokster battle, Loyola Los Angeles 42 Vigneux v Canadian Performing Right Society Limited,
Entertainment Law Review, 25 (2005) 392. [1945] A C 108.
29 Myrick R M, Peer-to-peer and substantial non-infringing use: 43 Shiell W R, Viral copyright infringement in the United States
Giving the term ‘substantial’ some meaning, Journal of and the United Kingdom: The end of music or secondary
Intellectual Property Law, 12 (2005) 546. copyright liability? Part 2, Entertainment Law Reporter,
30 Moye J M, How Sony Survived: Peer-to-peer software, 15 (4) (2004) 107-113.
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first century, North Carolina Law Review, 84 (2006) 663. RPC 567.
31 Oppenheimer M S, Yours for keeps: MGM v Grokster, John 45 Australasian Performing Right Association Ltd v Jain,
Marshall Journal of Computer & Information Law, 23 (1990) 18 IPR 663; Gendreau Y, Authorization revisited,
(2005) 209. Journal of Copyright Society of the USA, 48 (3) (2001) 345.
32 Sony Corporation of America v Universal City Studios Inc 46 Winstone v Wurlitzer Automatic Phonograph Co of Australia
464 US 417 (1984). Pty, [1946] VLR 338, Gendreau Y, Authorization revisited,
33 Pontes D, Rewinding Sony: Can the Supreme Court and big Journal of Copyright Society of the USA, 48 (3) (2001) 345.
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34 A centralized indexing model uses a single central server to 48 Section 51, Copyright Act, 1957, ‘When copyright infringed-
maintain index information. When a user accesses the peer- -Copyright in a work shall be deemed to be infringed—(a)
to-peer network, information about the resources available on when any person, without a licence granted by the owner of
the user’s computer is sent to the indexing server, along with the copyright or the Registrar of Copy rights under this Actor
the IP address of the user’s computer. Feder J, Is Betamax in contravention of the conditions of a licence so granted or
obsolete?: Sony Corp of America v Universal City Studios of any condition imposed by a competent authority under this
Inc In the age of Napster, Creighton Law Review, 37 (2004) Act-(i) does anything, the exclusive right to do which is by
865. this Act conferred upon the owner of the copyright, or, (ii)
35 ‘Peer-to-peer (P2P) application consist of a number of peers, permits for profit any place to be used for the communication
each performing a specific role in the P2P network, in of the work to the public where such communication
communication with each other.’ In case of P2P system, constitutes an infringement of the copyright in the work,
same computers simultaneously act both, as server and client. unless he was not aware and had no reasonable ground for
Because the Internet Protocol (IP) addresses of the user believing that such communication to the public would be an
requesting for some information is also, sent to the central infringement of copyright’.