Legal Realism in Action: Indirect Copyright Liability's Continuing Tort Framework and Sony's De Facto Demise
Peter S. Menell* 
David Nimmer** 
55 UCLA L. Rev. 143

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The U.S. Supreme Court’s indirect copyright liability standard, derived in Sony Corp. of America v. Universal City Studios, Inc. from patent law and reasserted in Metro-Goldwyn- Mayer Studios Inc. v. Grokster, Ltd., is widely seen as creating a safe harbor for distributors of dual-use technologies. Yet, when one looks to cases decided since Sony, subsequent legislative enactments, and post-Sony decisions of technology companies in the marketplace, a different reality emerges. This Article explores and explains the broad gulf between the idealized Sony safe harbor and the practical reality. It shows that the law in many respects reflects the tort principles that more generally undergird copyright liability.

* University of California at Berkeley (Boalt Hall) School of Law.
** UCLA School of Law and Irell and Manella, LLP.

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