"First of all, it is based on a world of physical objects and places. An important assumption of the Sony safe harbor is that, once you own a thing (a VCR and a TV), you should be able to use it as you like"

I'm not so sure the physical / digital divide is a significant factor for whether the courts find secondary liability. A&M Records v. Abdallah found contributory liability where one sold audiotapes with pre-set lengths, for the purpose of others to use to illegally copy music, even when the defendant had no further part in the infringement that later occurred. The justification was that the defendant knew the tapes were being used for a largely illegal purpose, despite the fact that the tapes could have been used legally. I don't see this being too far away from file-sharing, with Abdallah acting like the network, held liable for the actions of others, some of which are non-infringing.

In any event, I think you might be interested in the ongoing (as far as I can tell) litigation of Arista v. Lime Group. Limewire is being sued under Grokster-type-liability theories, but unlike Grokster, Limewire was not stupidly-blatant about promoting the infringing use.

-- JonathanBonilla - 12 May 2009