Common-Sense (Federal) Common Law Adrift in a Statutory Sea, or Why Grokster Was a Unanimous Decision

47 Pages Posted: 29 Aug 2005

See all articles by Jay Dratler

Jay Dratler

University of Akron - School of Law


The Supreme Court astonished copyright and music-industry lawyers by deciding the Grokster file-sharing case unanimously in the industry's favor. The parties and some 61 distinguished amici (including the United States, two Senators and one State) had argued the case largely on the basis of modifying or clarifying the Court's 1984 decision in Sony. Yet the Supreme Court sidestepped that issue almost entirely, deciding the case as a matter of federal common law. It ruled unanimously that secondary liability can exist for inducing infringement of copyright and hinted strongly that the facts of the case would support an inducement claim on remand, regardless of the rule of Sony.

This article examines the causes and consequences of that unanimous decision. The principal causes were a mistake in civil procedure (cross motions for summary judgment based on facts, rather than claims or causes of action) and confusion between statutory interpretation and common-law analysis. The article analyzes how quasi-statutory prescriptions like the "rule" in Sony have led litigants to forget that secondary liability for copyright infringement (unlike patent infringement) is solely a matter of federal common law. If then explores how easy (in retrospect) it would have been to decide Grokster on a multi-dimensional common-law basis through factual analogy and distinction to and from precedent. It shows how much simpler and more accessible to the bar and laypeople common-law analysis is than decisions based on incomprehensible statutory amendments badly drafted by lobbyists for special interests and rubber-stamped by Congress, providing several examples from the last fifteen years. It concludes with a plea for industry and the bar to let the courts do their jobs and the (federal) common-law process work, as it did so well in Grokster.

Keywords: copyright, secondary liability, vicarious liability, contributory infringement, inducing infringement, file sharing, peer-to-peer, P2P, Grokster, Napster, common law

JEL Classification: K29, K49, L82, O33, O34, O38

Suggested Citation

Dratler, Jay, Common-Sense (Federal) Common Law Adrift in a Statutory Sea, or Why Grokster Was a Unanimous Decision. Santa Clara Computer and High Technology Law Journal, Vol. 22, No. 3, 2006, U of Akron Legal Studies Research Paper No. 05-13, Available at SSRN:

Jay Dratler (Contact Author)

University of Akron - School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States

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