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)

• The Court states that "in an action for contributory infringement against the seller of copying equipment, the copyright holder may not prevail unless the relief that he seeks affects only his programs, or unless he speaks for virtually all copyright holders with an interest in the outcome (paragraph 45). This reminds me of something Glenn Brown said on the phone today-- a policy argument in favor of YouTube is that traditional copyright holders are not like-minded about what they want online. Just as some copyright holders (like Mr. Rogers) had no objection to home taping for noncommercial use, some copyright holders want their video clips to be posted on YouTube. The Court also mentions in Grokster that Grokster and StreamCast tried to support their claim by pointing to copyright holders who encourage copying. I don't understand these arguments, which all seem to be premised on the idea that if some copyright holders like the copying at issue, it somehow matters less that the copyright holders who bring the lawsuit don't, and the Court should therefore give more weight to the promotion of technological innovation than to the rights of copyright holders. Maybe I'm missing something, but why does it matter that some copyright holders don't mind the copying? Isn't the reproduction of any copyrighted material without a license always an infringement of copyright? Samantha Lipton 23:43, 7 January 2008 (EST)
  • To your last sentence, unless I'm recalling incorrectly I think there is the notion of authorization in the Copyright Act. An authorized reproduction isn't infringing. However, this doesn't take away from your point/issue with the Sony arguments.--Jumpingdeeps 09:32, 8 January 2008 (EST)
  • That makes sense to me in the context of Channel 58 (which published a guide listing the programs for which home taping was authorized), but when the court discusses Mr. Rogers it just states that Fred Rogers testified that he had no objection to home taping. How does this kind of after-the-fact authorization fit in to the notion of authorization in the Copyright Act? I guess in a standard case of direct infringement this would not be an issue because the copyright owner of Mr. Rogers just wouldn't sue the infringer. The best explanation that I can think of for the Sony Court's differentiation between the relevance of 3d party conduct in an action for direct infringement v. in an action contributory infringement is that in an action for contributory infringement against a defendant allegedly involved in the copying of all sorts of materials (owned by a diverse group of copyright holders) there is a risk that action taken by one particular group of copyright holders might result in a judgement that does not accord with the interests of the majority of copyright holders. The Court's decision in Sony seems to result from a concern about harm to both fair use dolphins and authorized tuna. Samantha Lipton 10:51, 8 January 2008 (EST)
    • I think your explanation is right. I think the key is that we're focusing on secondary infringement by creation of a device. For a person who is liable for contributory infringement (for instance, a manager promoting an infringing band), finding that person liable doesn't really harm third parties. In contrast, finding secondary liability based on creation and dissemination of a device does harm third parties significantly. To find secondary infringement liability to attach to creation of the device is essentially to kill the device, I suspect (for instance, Napster doesn't exist any longer in its traditional form). If secondary liability were found for the Betamax, Mr. Rogers wouldn't have been able to have his programs taped because Sony would have stopped making Betamaxes. Giving objecting copyright holders the power to kill a device is a strong weapon, which can harm non-objecting copyright holders and consumers. That's why I think is why the Court and the articles we read only want to give it out if the device really is so bad (with the suggested standards for what is "so bad" differing). --Dankahn 12:09, 8 January 2008 (EST)
• There's an interesting twist to Sony making its way through the courts. Twentieth Century Fox Film Corp. v. Cablevision Systems Corp., 478 F.Supp.2d 607 (S.D.N.Y. 2007) dealt with a DVR service offered through the internet. Cablevision wanted to provide hard disk space and recording capabilities at a central location physically controlled and operated by Cablevision but at the direction of individual users. The district court held Cablevision responsible for direct infringement (the company waived any fair use defense), and the case is now under appeal in the Second Circuit. Ac 12:39, 8 January 2008 (EST)

MGM v. Grokster

• While MGM won this lawsuit the real victory may have gone to the technology industry. MGM clearly didn’t want to win under inducement because a P2P technology that didn’t encourage or induce infringement would not be liable under that theory—but 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)

Fred von Lohmann: How Hollywood Has Been Trying to Disrupt Disruptive Innovation

• FYI the Fred von Lohmann article is talking about Digital Millennium Copyright Act §1201 (anti-circumvention rules) and not §512 when he mentions content that is protected by "technological protection measures." (TPM). Not only does §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 §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)

Randy Picker: Rewinding Sony: The Evolving Product, Phoning Home and the Duty of Ongoing Design

• 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)

• I think that Picker's idea that networked products that retain control over the system should be subjected to substantial noninfringing use test, "coupled with the duty to evolve the product to eliminate infringing uses" (26) makes a lot of sense. As Picker points out, this would accord with Section 512 in that copyright infringement problems could be dealt with after they appeared. It is strange that the safe harbors available to service providers under 512 are unavailable to p2p networks, and a test like the one Picker suggests would introduce a little more uniformity. I think the "notice and takedown" framework, despite its flaws, is a good way to safeguard innovation while respecting the rights of copyright holders. Samantha Lipton

• I'm not a fan of Picker's test--especially the narrower standard for non-controlled products. Not only does this disadvantage programs that are capable of many different kinds of uses (wiki software or blog software, for example), but it also forces many software programmers to maintain, update, and modify their software for years after they write it, effectively turning software products into services. Picker doesn't fully grasp the generativity of the Internet and PCs. He implicitly focuses his analysis on large software companies that have the resources to maintain their software. But this regime causes big problems for smaller software makers and individuals who would like to write a program and share it with the world. These people won't have the resources or the interest in updating their software to prevent unanticipated uses, but if they don't, then Picker's test places them at risk of liability. In the end, this test would chill a lot of innovation and would bias the law toward large software companies at the expense of small companies and lone programmers. JoshuaFeasel 11:42, 8 January 2008 (EST)

• I completely agree with Joshua. I'm also wondering if Picker's test creates problems of consumer uncertainty or harms consumer expectations. If products have to be changed and modified for years down the line to evolve to avoid copyright infringement better, that could really entail substantial changes to a product. In order to change a product to avoid infringement, the alterations might have collateral affects beyond just changing its infringing capacity per se; the product might have to change in other ways too. I'm not sure how big the changes would have to be, but it seems like it's at least a possibility that they'd have to be pretty big. Consumers wouldn't know what kinds of changes to expect in a product when they first buy it, and I think many would find changes to products they've purchased frustrating. It might hurt sales of new and innovative products if consumers expect that what they're buying isn't really the product's final form. --Dankahn 12:09, 8 January 2008 (EST)