We have reached a telling intersection in the law of secondary copyright liability. Cases in which defendants seek to broaden the safe harbors of Section 512 of the Digital Millennium Copyright Act (“DMCA”) are running up against precedent generated by Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., in which courts have held service providers liable for promoting infringement by their users. In some instances, the behavior for which the defendants are seeking shelter under Section 512 bears more resemblance to the sort of purposeful conduct condemned by the Supreme Court in its 2005 Grokster decision than that of the prototypical “innocent” service provider Congress sought to shield under the DMCA.
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