CopyrightX+Lecture+11:+ Supplements+to+Copyright...Aimster deviates from Sony • To trigger the...
Transcript of CopyrightX+Lecture+11:+ Supplements+to+Copyright...Aimster deviates from Sony • To trigger the...
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CopyrightX Lecture 11: Supplements to Copyright
Selected Illustra:ons
William Fisher April 11, 2013
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The following images appear in the background of eleventh lecture in the CopyrightX lecture series. A recording of the lecture itself is available at hIp://copyx.org/lectures/. Removed from their original context, the images will not make much sense. The func:on of this collec:on of images is to enable persons who have already watched the lecture to review the material it contains. The terms on which these materials may be used or modified are available at hIp://copyx.org/permission/.
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Kraakman, “Gatekeepers” (1986)
“Successful gatekeeping is likely to require 1) serious misconduct that prac:cable penal:es
cannot deter; 2) missing or inadequate private gatekeeping
incen:ves; 3) gatekeepers who can and will prevent misconduct
reliably, regardless of the preferences and market alterna:ves of wrongdoers; and
4) gatekeepers whom legal rules can induce to detect misconduct at reasonable cost.”
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Applied to Copyright Penal:es should be imposed on third par:es in hopes of suppressing infringing behavior by others only if: 1) otherwise, the incidence of copyright infringement would be
unacceptably high, because direct infringers cannot be controlled by socially acceptable sanc:ons;
2) the third par:es, le[ to their own devices, would not intervene to curb infringement – and indeed, might foster it;
3) the third par:es we might target are in a posi:on to effec:vely suppress infringement – in other words, the direct infringers cannot circumvent them; and
4) the social and economic costs of penalizing the third par:es are not unacceptably high.
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Manager Theatre Owner Musical
Group
Public Audience
Copyright Owner
Direct infringement
Contributory infringement
Vicarious infringement
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Secondary Liability in Copyright • Contributory Infringement
requires – Direct infringement – Knowledge (actual or constructive)
by the defendant – Material contribution
• Vicarious Infringement requires – Direct infringement – Financial interest in the
infringement – Right and ability to supervise the
direct infringer
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Secondary Liability in Copyright • Contributory Infringement
requires – Direct infringement – Knowledge (actual or constructive)
by the defendant – Material contribution
• Vicarious Infringement requires – Direct infringement – Financial interest in the
infringement – Right and ability to supervise the
direct infringer
Fonovisa (1996) Providing site and facilities is sufficient Sufficient that infringement makes venue more attractive
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Secondary Liability in Copyright • Contributory Infringement
requires – Direct infringement – Knowledge (actual or constructive)
by the defendant – Material contribution
• Vicarious Infringement requires – Direct infringement – Financial interest in the
infringement – Right and ability to supervise the
direct infringer
COSNU Defense
?
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Secondary Liability in Copyright • Contributory Infringement
requires – Direct infringement – Knowledge (actual or constructive)
by the defendant – Material contribution
• Vicarious Infringement requires – Direct infringement – Financial interest in the
infringement – Right and ability to supervise the
direct infringer
COSNU Defense
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Napster Website
User User1 Library
Directory
User User2 Library
Inde
x
User User6 Library
User User7 Library
User User8 Library
User User4 Library
User User3 Library
User User5 Library
User User9 Library
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Napster holdings ! Use of the Napster system to “sample” songs is not
a fair use ! Because Napster is capable of a substantial
noninfringing use, the operators of the system lack the “constructive knowledge” of infringing uses necessary to support contributory liability
! Because the Napster operators can ascertain whether a particular recording is being copied illegitimately, they have timely “actual knowledge” of specific acts of infringement necessary to support contributory liability
! For the same reason, the Napster operators have the “supervisory control” necessary to support vicarious infringement
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Secondary Liability in Copyright • Contributory Infringement
requires – Direct infringement – Knowledge (actual or
constructive) by the defendant
– Material contribution • Vicarious Infringement
requires – Direct infringement – Financial interest in the
infringement – Right and ability to
supervise the direct infringer
• Aimster: CI because: – Ds failed to establish any
legitimate uses of the systems: COSNU defense inapplicable
– “Willful blindness” constitutes knowledge
– Ds actively encouraged infringement
• Aimster: VI uncertain because: – “Willful blindness” may
not be sufficient to treat Ds as a principal
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Aimster deviates from Sony
• To trigger the COSNU defense, a defendant must demonstrate that its product has substantial noninfringing uses, not merely that it is capable of substantial noninfringing uses
• Even if the defendant makes such a showing, if the infringing uses are substantial, the defendant must also show that it would have been “disproportionately costly” to design its product so as to eliminate or reduce the infringing uses
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User 1
User 3
User 2
Central Server
SuperNode
SuperNode
SuperNode User 7
User 8
User 9
User 6 User 5
User 4
Adapted from Webnoize
Fasttrack
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Grokster decision (1) Leave Sony doctrine intact – Breyer concurrence sings the praises of Sony and
interprets it generously – Ginsburg concurrence interprets it more narrowly – Souter’s majority opinion formally avoids the
question of whether Sony should be modified (p. 17), but is structured so as to preserve its “safe harbor” (p. 22, n. 12)
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Grokster decision (2) Modified “inducement” theory – “[O]ne who distributes a device with the object of
promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties”
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What evidence can be used to show “inducement”? “Purposeful, culpable expression and conduct”
Pertinent • Advertising illegal uses • Targeting customers known to
engage in illegal uses • Failure to adopt infringement-
reducing technologies – Insufficient on its own – n. 12
• “commercial sense” of the enterprise depends on illegal uses – Insufficient on its own – p. 23
Not pertinent • Knowledge of
infringing uses • Product
support
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Ambiguity: liability arises when “the distributor intended and encouraged the
product to be used to infringe” (p. 23, n. 13)
Subjective standard • Internal
correspondence would be relevant
• Subsequent admissions would be relevant
Objective standard • Only affirmative acts
fostering illegal activities would be relevant
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Contributory Infringement
Vicarious Infringement
Inducement
512(c)
Insufficient knowledge
Insufficient control