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Copyright (c) 2006 School of Law, Santa Clara University
Santa Clara Computer and High Technology Law Journal

SYMPOSIUM REVIEW: THE NEGLIGENT ENABLEMENT OF TRADE SECRET MISAPPROPRIATION

March, 2006

22 Santa Clara Computer & High Tech. L.J. 455

Author

Michael L. Rustad+

Excerpt



INTRODUCTION
 
During the March 30, 2005 oral argument in the Grokster file swapping case, the attorney representing the entertainment industry urged the U.S. Supreme Court to brace up its test for contributory copyright infringement in order to restrain widespread peer-to-peer (P2P) copyright infringement. 1 The attorneys for the media moguls urged the Court to replace the Sony standard with a more rigorous secondary liability test that would make software providers legally responsible for enabling P2P copyright infringement. 2 During the Grokster oral argument, Justice Stephen Breyer expressed skepticism about the long-term effects of expanding secondary copyright liability beyond the contours of the Sony case. Justice Breyer speculated that the Xerox copying machine and the Apple iPod would never have been brought to the marketplace if the inventors were subject to secondary liability because their invention enabled copyright infringement. 3

In the Ninth Circuit opinion, the appellate court applied the Sony standard to the Streamcast and Grokster software, holding that the providers of these peer-to-peer (P2P) products could not be secondarily liable for copyright infringement since the software was capable of significant lawful use. The court held that neither P2P software developer "could be held liable, since there was no showing that their software, being without any central server, afforded them knowledge of specific unlawful uses." 4 In its groundbreaking Grokster opinion, the U.S. Supreme Court reversed the Ninth Circuit, holding that the P2P providers could be secondarily liable for copyright infringement by importing the novel ...
 
 
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