9:37 PM

It's apparent from Uzbradistan's comment on my last post that my writing about Sony and MGM v. Grokster hasn't been that clear. So now that I've read the opinion on Grokster (which was the real point of my recent posts), I'll attempt to explain what the rulings in Sony and MGM v. Grokster mean.

I'll start with copyright infringement generally. Copyright law is a combination of the written law as passed by Congress and of various rules that have come about through court decisions. The written statute defines copyright infringement, but court decisions have created additional forms of infringement.

The copyright statute grants a set of exclusive rights to copyright holders, limited by various exceptions also defined by the statute. If you write a book and I start publishing copies of it without your permission, I am directly infringing on your copyright, as defined by the statute. If, on the other hand, I write a review of your book and quote your book in my review, I am not infringing on your copyright even if I don't have your permission. Again, that's defined by the statute.

Court rulings have created two forms of indirect infringement. These forms of infringement are not defined by the statute. They also do not require violating the exclusive rights of the copyright holder. Contributory infringement occurs when one person "materially contributes" to the direct infringement committed by another. An example of a contributory infringer is a concert promoter. If the performer infringes on copyright by performing songs without the permission of the composer, the promoter contributes to the infringement by creating the audience for the performer. Without the audience, there would be no performance and no infringement, but the promoter does not directly infringe on the copyright of the composer. However, the promoter is still liable for contributory infringement.

Vicarious infringement occurs when someone has the ability to control potentially infringing behavior and receives benefits from the infringement. For example, someone who sells infringing copies of a CD at a flea market directly infringes on copyright. The owners of the flea market vicariously infringe because they are paid by the seller and because they can refuse to allow the seller to operate at the flea market. Like contributory infringement, the flea market owner does not directly infringe on copyright by selling the infringing items. The owner benefits from the infringing action, but does not participate.

Contributory infringement and vicarious infringement are not defined by the copyright statute. They have been defined through court rulings, with the consequence that they are not as clearly and distinctly defined as they might be if defined by statute. Many lawsuits alleging indirect infringement argue both possibilities, leaving the court to determine which applies, if either.

That brings us to Sony v. Universal. Sony invented the Betamax VCR. Universal Studios sued Sony under a theory of indirect infringement. The VCR does not infringe on copyright itself, but purchasers of VCRs can use them to infringe. The Supreme Court ruled that Sony was not liable for copyright infringement. VCRs can be used for infringing purposes, such as copying a copyrighted movie. They can also be used for noninfringing purposes, such as recording a TV program to watch at another time. Since VCRs can be used for noninfringing purposes, Sony was not liable for indirect copyright infringement.

The key holding of Sony is that the creator of a new technology is not liable for copyright infringement if the technology is "capable of commercially significant noninfringing uses." However, the precise meaning of that phrase is unclear. It could potentially include anything from "nonfringing uses are theoretically possible" to "a majority of actual use is noninfringing." Recent court rulings have widely varied in their interpretation of that phrase.

MGM v. Grokster, the first of these cases to reach the Supreme Court, gave the Court an opportunity to define "commercially significant noninfringing use." Alternatively, the Court could have rejected the Sony standard and created an entirely new standard for contributory infringement. Despite its unanimous opinion, the Court failed to clarify this issue. The opinion of the Court did not address this question at all, instead defining a third form of indirect infringement. Justice Ginsburg and Justice Breyer each wrote a concurrence to the opinion. The concurrences battle on the definition of commercially significant noninfringing use.

Ginsburg's concurrence sets a high standard for substantial noninfringing use. While it's not clear how much noninfringing use is enough to avoid contributory infringement, the noninfringing use of Grokster's file sharing software clearly is not enough. She indicates that the proportion of actual noninfringing use to the total use determines whether it is commercially significant, but she does not state what proportion would be sufficient. She would hold Grokster liable for contributory infringement.

Justice Breyer argues the opposite result in his concurrence. He states that a mere theoretical possibility of noninfringing use is not sufficient to avoid liability. However, the evidence provided for noninfringing uses of Grokster's software demonstrates a capability for noninfringing use which is sufficient to avoid liability for contributory copyright infringement.

Three justices signed Ginsburg's concurrence and three signed Breyer's. Three signed neither. This gives a three to three ruling, which has basically no legal force and gives no indication of how the Court might rule in the future. The question of commercially significant noninfringing use remains unanswered. Despite this, the Court ruled unanimously against Grokster. The ruling avoids the question of noninfringing use and creates a new form of indirect liability instead.

The ruling states that Grokster may be held liable for inducing copyright infringement. Inducement can be explained through an analogy. Suppose I sell crowbars, advertising them as "Matt's Crowbars: Good for Construction." If someone buys one of my crowbars and uses it to break into a house, I can't really be held responsible for that. Suppose that instead I advertise them as "Matt's Crowbars: Good for Breaking and Entering." If someone uses one of my crowbars to break into a house, it makes sense to hold me indirectly responsible. By suggesting an illegal action and providing a tool to do it, I am causing, or inducing, that crime to occur.

The question from the Sony decision is how much noninfringing use qualifies as a commercially significant noninfringing use. That question is still unanswered. The question from MGM v. Grokster is what is sufficient to cause inducement. The Court found many inducing actions by Grokster and StreamCast, meaning that how much is enough is totally unclear. The inducement listed in the ruling includes:

• Advertising to users of Napster

• A name derived from Napster

• Advertising showing infringing uses

• Technical support to users who are committing infringement

• A business model based on use of the software, given that most use is infringing use

• Failure to attempt to block infringing use, in combination with the other evidence of inducement

Finding inducement is easy when there's lots of evidence for it. The question is when there's only limited evidence. For example, suppose a manufacturer advertises a use for a product which it believes is noninfringing. Apple advertisements for the iPod and iTunes use the phrase "Rip. Mix. Burn." Apple clearly believes that although it is encouraging copying, the copying is noninfringing. What if the advertised use is ruled to be an infringement? Suppose a court rules that copying songs to an iPod is an infringement. Would Apple be vulnerable to an inducement claim? At this stage, there are no definite answers. Further lawsuits may clarify things. But they may just create more of a muddle.

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8:56 PM

Yesterday I posted my initial thoughts while reading the Supreme Court opinion of MGM v. Grokster. Today I will post any additional thoughts on the two concurrences on the ruling. Here's a quick review of the case and the Supreme Court decision, to be followed by my comments. Grokster (and StreamCast, its co-defendant) offer products which can be used to infringe on copyright. They were sued by MGM and other copyright holders for contributory and vicarious infringement on copyright. Grokster was held to not be infringing by the District Court and by the Appeals Court on the basis of Sony v. Universal, which held Sony not liable for copyright infringement for producing VCRs because the VCR is capable of substantial noninfringing uses. The Supreme Court overturned the Appeals Court ruling on the basis that Grokster's intent was to enable copyright infringement, making them liable for inducing copyright infringement.

Ginsburg's concurrence briefly acknowledges the discussion of inducing infringement in the opinion and then goes on to discuss contributory infringement. She focuses on "substantial noninfringing use" as applied in Sony. That ruling held that recording broadcast television programs to watch at another time constituted fair use, and therefore substantial noninfringing use.

The opinion did not address the question of contributory infringement, finding inducing infringement sufficient to create liability. While it raised the question of what type of behavior is sufficient to induce infringement, it avoided the question of what makes a noninfringing use substantial. Ginsburg would raise the bar for substantial noninfringing use. She dismisses the evidence presented in favor of noninfringing use in the case and indicates that the proportion of noninfringing files distributed over the network to the number of infringing files distributed should determine whether the noninfringing use is substantial.

She doesn't set any numbers, but it is clear that the noninfringing 10-25% of files available on Grokster is not sufficient. This is contrasted to Sony, in which 10% of taping was authorized by the broadcaster. The distinction here may be less clear than she intended, although it is true that Sony held that most of the taping of the other 90% of broadcasts constituted fair use, while she denies the possibility of any fair use in copying files over filesharing networks.

Breyer's concurrence is a response to Ginsburg. He states that because of the ruling on inducement, consideration of contributory infringement is not necessary. But since Ginsburg brought it up, he will discuss it as well.

I had the impression that Sony clearly stated that recording a program to watch at another time, even without the permission of the broadcaster, constituted fair use. Furthermore, recording programs to build a personal library was at least potentially fair use. Breyer asserts that Sony indicated that the first use might be fair use and the second is clearly not. As in Souter's opinion, Breyer's concurrence makes an interpretation of Sony that disagrees with my previous understanding of the ruling. Again, I can't judge at this time whether my previous understanding was inaccurate or whether the current ruling is seeking to change the meaning of the prior ruling without acknowledging that it is doing so. (Breyer later states that Sony did ultimately conclude that recording programs to watch at another time is in fact fair use. He initially minimizes that conclusion to strengthen the argument that a relatively low percentage of authorized use qualifies as a substantial use.)

Like Souter in the opinion of the Court and Ginsburg in her concurrence, he turns to patent law to resolve this question of copyright law. Ginsburg argued that capability for substantial noninfringing use was not sufficient. Substantial noninfringing use also had to occur in practice. Breyer quotes both previous rulings in patent cases and Sony to conclude that capability is sufficient.

Breyer then turns to the same statistics I questioned in Ginsburg's ruling. It's always exciting to find that a Supreme Court Justice shares the same thoughts you did on a case. Of course, he goes a step further, pointing both to the anecdotal evidence and the statistical evidence of authorized copying in Sony, rebutting Ginsburg's dismissal of the anecdotal evidence and her interpretation of the statistical evidence in the current case.

Breyer's discussion of contributory infringement is explicitly not directed toward the current case. He's protecting the freedom to create new technologies which may have both infringing and noninfringing uses. "But Sony's standard seeks to protect not the Groksters of the world..., but the development of technology more generally." I think that's awesome.

Dude. Breyer just gets better and better. He rhetorically asks if Sony should be modified or interpreted more strictly. "In particular: (1) Has Sony (as I interpret it) worked to protect new technology? (2) If so, would modification or strict interpretation significantly weaken that protection? (3) If so, would new or necessary copyright-related benefits outweigh any such weakening?" He answers, "Sony's rule is clear," "Sony's rule is strongly technology protecting," "Sony's rule is forward looking," and "Sony's rule is mindful of the limitations facing judges where matters of technology are concerned." That's just beautiful.

It's probably obvious that I think Breyer engaged in a glorious smackdown of Ginsburg. The fact that I'm inclined to agree with him probably has biased my judgment. Ultimately, my judgment isn't the important one. Three justices signed Ginsburg's concurrence and three signed Breyer's. That leaves three who signed neither.

Grokster and StreamCast have been nailed by inducement, but they are far from the only sources of file sharing technology. Some sources may have been more careful to not promote copyright infringement. Whether they can be found liable for contributory infringement depends on the three justices who signed neither concurrence. File sharing will return to the Supreme Court, and the next case will determine more about the relationship between technological advances and copyright than this one did.

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10:51 PM

Today was a very big day for copyright law and the Internet. The Supreme Court, in a unanimous decision, ruled that manufacturers of technologies which can be used to infringe on copyright are potentially liable for any infringing use of that technology by end users. The ruling in MGM v. Grokster is available as a PDF (thanks to SCOTUSblog for the link). My notes on the decision follow.

The ruling states that "one 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." In retrospect, this is not a surprising outcome. It was clear from the oral arguments that the Court still basically supported Sony but that they were uncomfortable with letting Grokster escape liability. By introducing the intent of the distributor, they can find Grokster liable without creating liability for any device which can potentially be used to infringe copyright.

The ruling calls Napster "notorious." Is that fair? It strikes me as hyperbolic, but it may well be accurate. There's a bit of a guilt by association thing going on. Napster is obviously evil, in the Court's view, and anything tied to Napster is also evil. StreamCast worked to get users of Napster to adopt their software, and Grokster gets in trouble because its name is derived from Napster.

The profit motive, at least as expressed on page 8 of the ruling, strikes me as problematic. While the software is being used, advertisements are displayed to the user. Obviously the companies want to encourage users to use the software more, so as to increase the advertising revenue, but there seems a logical leap from that statement to the conclusion that therefore the principal intended use was to infringe on copyright. Sony's income was from the sale of the VCR, not its use, but it's undoubtedly true that some VCR sales occurred for the purpose of infringing on copyright. Selling a device with the knowledge that it may be used for infringing purposes doesn't strike me as inherently different than advertising while software is being used, possibly for infringing purposes.

The business model itself isn't the problem. Encouraging users to engage in infringing uses, where those uses support the business model, may be a problem, but the ruling already established that the companies were encouraging infringing uses. I'm not sure how an advertisement based business model in itself suggests that the companies were dependent on infringement to succeed.

The ruling implies that the proportion of infringing use to noninfringing use is relevant to the question of liability. Is this expected use or actual use? Suppose I develop a technology with the expectation that it will be largely used for copyright infringement, but in fact the primary use turns out to be noninfringing. Am I liable for any infringing use which does occur? Either outcome feels problematic.

The ruling argues for indirect liability, stating that "[w]hen a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement." I agree that it's the American way to sue someone when you have been wronged. I also agree that an easy target for the lawsuit will always be preferred. I'm not sure I agree that in the absence of a desireable target, it's fair to create one by expanding the scope of liability.

One of the significant questions about this case was whether it would modify the Sony Betamax decision. Sony held that the manufacturer is not liable for a product which can be used to infringe copyright if the product is "capable of commercially significant noninfringing uses." MGM argued that noninfringing uses of Grokster were not commercially significant. This ruling recasts the Sony ruling as dependent on "presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use." It's not the noninfringing uses themselves, it's whether it was intended to be used for infringing purposes. The court sidesteps MGM's argument.

At the same time, I can't judge the validity of the Court's conclusion without reviewing the Sony decision. Sony is typically presented as hinging on capability of noninfringing uses. It's possible that this is a misrepresentation of the original decision, and the decision in fact is based on the intent for noninfringing use. It's also possible that the current ruling is changing the meaning of Sony while simultaneously denying that it is doing so. This merits further research and discussion.

I tend to resist lumping together copyright, patent, and other rights in information under the umbrella of "intellectual property." While copyright and patents both give rights to the use of information, the laws governing them are completely independent and referring to them as a single unit blurs their distinctions. The Supreme Court feels no such need to keep them separate. In supporting the claim that encouraging copyright infringement creates liability for copyright infringement, the ruling cites a list of cases of patent infringement. In this instance, at least, the Court does not distinguish between copyright and patents. But then the ruling states that the Sony ruling was also derived from patent law, so perhaps this is nothing new.

I generally trust the Supreme Court to have a sufficient understanding of new technology to be able to rule reasonably on the technology. This trust is reinforced by the proper use of the terminology and jargon of the technology. So the statement that "StreamCast beamed onto the computer screens of users . . . ads . . ." (page 20) makes me nervous. What exactly does "beamed" mean? It's not as bad as an egregious misuse of technical terminology, but the failure to use more specific language reduces my confidence that the Court knows what it's talking about. This is reinforced by the ruling's discussion of OpenNap, which strikes me as fuzzy. On the other hand, I don't know enough about OpenNap to evaluate the ruling's use of the term.

This concludes my notes on the first reading of the opinion in this case. There are two concurrences, but it is late and they will have to wait until tomorrow.

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