Pre-class Discussion for Jan 8

Sony v. Universal

According to Sony, the copyright holders who were the respondents had no right to prevent other copyright holders from authorizing the taping of their programs, even if the taping of the respondents' programs had been considered infringing. The opinion largely focused upon the ability of third parties to retain control over the reproduction of their works. Picker also considered the value of such non-infringing activity in his cost-benefit analysis of design. Did the court in Grokster ignore the "rights" of copyright owners who wish to share their work by framing the controversy as one between the development of useful technology and rights of copyright owners who do not want their works freely shared rather than framing it as being between different types of copyright holders? --Dglasser 21:11, 7 January 2008 (EST)

While MGM won this lawsuit the real victory may have gone to the technology industry. MGM clearly didnât want to win under inducement because a P2P technology that didnât encourage or induce infringement would not be liable under that theoryâbut exactly this happened. On the other hand, the technology industry hailed the Grokster decision because it saved the Sony Safe Harbor and did not require filtering technology. Post Grokster every p2p maker is likely to be more careful about marketing and offering customer support for infringing activity rather than mechanisms to filter out infringing content. Justice Souter stuck this important piece of dicta into Footnote 12: "in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial non-infringing uses. Such a holding would tread too close to the Sony safe harbor." See MGM v. Grokster, 545 U.S. 913 (2005), Majority opinion, pp. 22.n12. On the flip side, Mark Lemley considers this victory to be less than ideal because the inducement/intent standard is vague and provides the content industries/judges ample room to find intent and thereby squelch innovation. See Stanford law forum on Grokster. --Jumpingdeeps 20:28, 7 January 2008 (EST)

In another part of the opinion Justice Breyer cites amicus briefs that conflict over whether such detecting/filtering of infringement is hard. See MGM v. Grokster, 545 U.S. 913 (2005), Breyer concurrence, pp. 11. Both this and Justice Souter's majority opinion seems to hint at the lack of expertise on the part of judges to decide whether or not a technological design will promote infringement. One wonders whether a "special master" is better suited to do this. --Jumpingdeeps 20:28, 7 January 2008 (EST)

FYI the Fred von Lohmann article is talking about Digital Millennium Copyright Act Â§1201 (anti-circumvention rules) and not Â§512 when he mentions content that is protected by "technological protection measures." (TPM). Not only does Â§1201 force innovators to ask permission first, and innovate later, it completely denies the public-interest user access to content regardless of any rights she may have to that content where there is a TPM limiting access in place. Pamela Samuelson has suggested that a reverse notice-takedown procedure similar to Â§512 could be useful here: a public-interest user/innovator should be able to send notice to get a TPM taken down to be compatible with her rights. If the copyright owner objects (counter-notice) then the parties may go to courts to resolve the issue.--Jumpingdeeps 20:33, 7 January 2008 (EST)

Picker suggested that the Sony court was wrong to embrace the substantial noninfringing use test and advocated for a "primary use," "dominant use," or "predominant use" test for a producer who cannot evolve the product. These tests seem to assume that producers have full information regarding the future uses of their products. Even if producers were responsible for investigating such uses, the actual uses of their products may be completely different from their predictions. Lacking complete information, it is difficult for producers to perform a cost-benefit analysis to determine their design obligations or whether the products should be sold at all. --Dglasser 21:35, 7 January 2008 (EST)