Grokster and Beyond: Secondary Liability for Copyright Infringement During Live Musical Performances

Journal of Intellectual Property Law Volume 19 | Issue 1 Article 7 October 2011 Grokster and Beyond: Secondary Liability for Copyright Infringement During Live Musical Performances Kathryn Dailey Holt Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Kathryn D. Holt, Grokster and Beyond: Secondary Liability for Copyright Infringement During Live Musical Performances, 19 J. Intell. Prop. L. 173 (2011). Available at: https://digitalcommons.law.uga.edu/jipl/vol19/iss1/7 This Notes is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Holt: Grokster and Beyond: Secondary Liability for Copyright Infringeme GROKSTER AND BEYOND: SECONDARY LIABILITY FOR COPYRIGHT INFRINGEMENT DURING LIVE MUSICAL PERFORMANCES Kathgn DaileyHolf TABLE OF CONTENTS I. IN TRO D UCTION .......................................................................................... 175 II. BACKGROUND 176 COPYRIGHT ACT..................................... B. VICARIOUS LIABILITY........................................ 178 1. The HistoricalDevelopment of Vicarious Liabiliy........................... 2. Elements of Vicarious Liabiliy ........................................................ a. Right andAbility to Supenise and Control the Infringing Conduct.................................... b. DirectFinancialBenefit.......................... 178 180 CONTRIBUTORY INFRINGEMENT ..................................................... 183 1. The HistoricalDevelopment of ContributogInfringement................. 2. Elements of ContributoUInfringement.............................................. a. Knowledge of the Direct Infringement................... b. MaterialContribution to the Direct Infringement....................... 183 183 184 185 C. III. .................................................. A. ANALYSIS A. ....... 176 ......................................................................187 GROKSTER'S IMPACT................................. ........... 187 1. The Supreme Court'sHolding in Grokster ..................................... 2. Grokster's Impact on SecondaU Liabiliy ....................................... a. Impact on Vicarious Liability ................................................... b. Impact on ContributoUInfringement.......................................... B. 181 182 187 189 189 191 RAMIFICATIONS FOR INFRINGEMENT DURING LIVE PERFO RMA N CES................................................................................... 1. 2. 193 Vicarious Liability............ ................... .................... 193 ContributoUy Uability ................. ............. 194 * J.D. candidate 2012, University of Georgia School of Law. The author would like to thank her parents, Kim and Keith Holt, for their love and support. She would also like to thank her friends and law school classmates for their advice and companionship. 173 Published by Digital Commons @ Georgia Law, 2011 1 Journal of Intellectual Property Law, Vol. 19, Iss. 1 [2011], Art. 7 J. INTELL PROP.L 174 C. [Vol. 19:173 AN AGE-OLD SOLUTION..................................................................... 1. Music LicensingAgreements............................................................. 2. The Lounge Act Agreement.............................................................. IV. CONCLUSION https://digitalcommons.law.uga.edu/jipl/vol19/iss1/7 ........................................ ..... 196 196 198 199 2 Holt: Grokster and Beyond: Secondary Liability for Copyright Infringeme 2011] GROKSTER AND BEYOND 175 I. INTRODUCTION It is a Friday night and you are meeting your friends at a bar to relax and celebrate the beginning of the weekend. You arrive at your destination and notice that a local band is performing tonight. "Great," you think to yourself, "I love live music." You order a drink and the band starts to play a familiar song, something you have heard on the radio dozens of times. This is a common scene, one that does not seem to involve any illegal activity. However, by performing that one song, the band has engaged in copyright infringement and they are not the only ones responsible. On July 13, 2010, the United States District Court for the Central District of Illinois addressed just such a situation, ruling that the owners and operators of Goodfellas Pub & Pizza (Goodfellas) were vicariously liable for thirteen counts of copyright infringement.' Goodfellas is a restaurant located in Pekin, Illinois that often hires local bands to perform.2 On three separate occasions, Broadcast Music, Inc. (BMI), dispatched investigators to Goodfellas to determine specifically what music was being played.' During the course of their investigation, BMI discovered the bands hired by Goodfellas were playing copyrighted works without authorization, including such popular songs as "Billie Jean," 4 "I Want You to Want Me," 5 and "I Wanna Dance With Somebody Who Loves Me." 6 On May 11, 2009, BMI filed suit for copyright infringement, seeking a permanent injunction against Goodfellas in addition to statutory damages and costs and attorney's fees.7 The court's decision is the result of the steady progression of the law regarding copyright infringement, representing dozens of decisions spanning nearly one hundred years. The purpose of this Note is to discuss the progression of vicarious liability and contributory copyright infringement and their impact on a frequently neglected but quintessential aspect of music: the live performance. Specifically, this Note will examine the Grokster line of case law and assess its effect on more basic forms of musical copyright infringement. While on the surface MGM Studios, Inc. v. Grokster8 appears to be primarily applicable to new and expanding technologies, the court's holding concerning the two principal doctrines of secondary liability-vicarious liability and 1Broadcast Music, Inc. v. CDZ, Inc., 724 F. Supp. 2d 930, 937 (C.D. Ill. 2010). 2 Id. at 932. 3 Id. at 933. 4 Id. at 932. 5 Id. 6 Id. 7 Id. at 933. 8 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). Published by Digital Commons @ Georgia Law, 2011 3 Journal of Intellectual Property Law, Vol. 19, Iss. 1 [2011], Art. 7 J.INTELL PROP.L 176 [Vol. 19:173 for copyright ramifications definite contributory infringement-has examine the historical Part II will live performances. infringement during development of the doctrines of vicarious liability and contributory liability with respect to copyright infringement. Part III will examine Groksterand the impact it had upon the devel (...truncated)