Secondary liability in the post Napster era Ethical observations on MGM v. Grokster

Secondary liability in the post Napster era Ethical observations on MGM v. Grokster The principal theme of this paper is secondary liability to what extent should we hold those who cooperate in wrongdoing and illicit behavior accountable We probe this question by considering a lawsuit filed by the entertainment industry against the fileswapping services of Grokster and StreamCast. Our focus is on the legal and moral implications of this case. We argue that the courts, which have so far ruled in favor of the defendants, have misapplied the socalled Sony precedent for two reasons. The business model of these companies depends on copyright infringement with advertising and revenue volume directly proportionate to the level of that infringement. Also, Sonys safe harbor should not apply if there is active inducement of infringement. The key ethical question is the extent to which technological innovators must design and write their code to deal with infringement ex ante. We argue that purveyors of peerto peer technology are formal cooperators in wrongdoing if they deliberately configure their system to enable the illicit copying of copyrighted music and movie files. We also consider the conditions for unjustifiable material cooperation,and propose these conditions as a normative standard especially relevant for software vendors. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Information, Communication and Ethics in Society Emerald Publishing

Secondary liability in the post Napster era Ethical observations on MGM v. Grokster

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Publisher
Emerald Publishing
Copyright
Copyright © Emerald Group Publishing Limited
ISSN
1477-996X
DOI
10.1108/14779960580000266
Publisher site
See Article on Publisher Site

Abstract

The principal theme of this paper is secondary liability to what extent should we hold those who cooperate in wrongdoing and illicit behavior accountable We probe this question by considering a lawsuit filed by the entertainment industry against the fileswapping services of Grokster and StreamCast. Our focus is on the legal and moral implications of this case. We argue that the courts, which have so far ruled in favor of the defendants, have misapplied the socalled Sony precedent for two reasons. The business model of these companies depends on copyright infringement with advertising and revenue volume directly proportionate to the level of that infringement. Also, Sonys safe harbor should not apply if there is active inducement of infringement. The key ethical question is the extent to which technological innovators must design and write their code to deal with infringement ex ante. We argue that purveyors of peerto peer technology are formal cooperators in wrongdoing if they deliberately configure their system to enable the illicit copying of copyrighted music and movie files. We also consider the conditions for unjustifiable material cooperation,and propose these conditions as a normative standard especially relevant for software vendors.

Journal

Journal of Information, Communication and Ethics in SocietyEmerald Publishing

Published: Aug 31, 2005

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