Internet Law - Fall 2007

Blog 8, late.

A Divx player is a technology that will be free from contributory infringement under Sony.  To my understanding, a Divx player will play ripped dvds on your computer, where regular players, like Windows Media Player cant play ripped dvds.  (They need a codec?)  If Sony had come out the other way, Divx players would clearly be infringing.  Their main purpose is to be able to play illegally ripped dvds on users computers which would normally not support them.  What saves Divx players under Sony is that they are capable of substantial noninfringing uses: namely, that they are able to play all types of videos, including legally licensed ones. 

Silly Putty - Infringing Technology in an Egg

Dow Corning 3179 Dilatant Compound (aka Silly Putty) is a fun example of a "technology" that's legal to sell in our world, but the sale of which could constitute contributory  infringement in the alternate reality in which the Supreme Court in Sony held for the plaintiff with the majority opinion by Justice Blackmun.  I haven't seen any commercials for Silly Putty lately, but when they used to show them, I remember those spots specifically advocating its use for pressing on newspapers and copying their print onto the putty. 

If you set aside the obvious fact that this is Silly Putty we're talking about, then it becomes clear that it's hard to think of any better case for contributory liability by one with knowledge of an infringing activity inducing the infringing conduct of another, than a manufacture who tells purchasers that a main benefit of its product is its ability to duplicate protected materials when pressed against them.  Following this line of reasoning, it is not a great leap to imagine that a court might find that people would not buy Silly Putty if it could not do this, and that a substantial amount of Silly Putty' use might be this kind of playtime infringement.   Think about it.

No more video camaras? - Assignment 8

In the alternate universe where the movie studios successfully prevented Sony from making VCRs, they could also prevent them from making video cameras.

In this day and age it would be laughable for Sony to claim they didn't know, or have reason to know, people were using their camcorders to record movies in actual theaters and then making them available online. So the knowledge is there, a little easier if we need only constructive knowledge, but still likely to satisfy the high standard. And the cameras can definitely be said to "materially contribute to the infringing conduct of another", namely the free distribution of movies online.

The non-infringing uses of camcorders are also many, too many to list here. But it should be enough to say that real world players such as the porn industry would be very unhappy if video cameras were suddenly made illegal. More importantly though, infinite chapters and lessons in our history would be lost forever.

Blackmun's Alternate Reality

Assuming the Court adopted Justice Blackmun’s opinion in Sony Corp. v. Universal Studios, the sale of the CD burner would constitute contributory copyright infringement.

According to Justice Blackmun, fair use may be found when a work is used for purposes such as criticism, comment, news reporting, teaching, scholarship or research, i.e. permits works to be used for “socially laudable purposes.”  Under Blackmun’s fair use analysis, when the proposed use of a technology is an unproductive one, a copyright owner need prove only a potential harm to the market for the value of the copyrighted work.

The CD burner does not fit under any of Blackmun’s socially laudable purposes; therefore the proposed use would be considered an unproductive one.  A copyright owner would need to prove only a potential harm to the market for the value of the copyrighted work in order for the technology to constitute contributory copyright infringement.   

Musicians and Artists could easily prove a potential harm to the market for the value of their CDs.  Instead of buying CDs in stores, individual users could make copies of their friend’s CDs, or their friend’s friend’s CDs.  Individual users could also sell a Musician’s or Artist’s CD at a fraction of the price, significantly harming its market value.

Blackmun would likely conclude that the majority of the CD burner’s use is infringing.  Even though the CD burner is capable of valuable non-infringing uses, it would nonetheless be held illegal.

"Unauthorized Copy" and Paste

While writing this an hour before the deadline, most of the technologies that I was thinking about writing about were obviously taken – the rewritable disc, the mp3 player, and the scanner/photocopier.  So I tried to come up with something else.  Then I read the assignment one more time. And then I copied and pasted the assignment:

- Name a technology (besides the VCR) that's legal to sell in our world, but the sale of which would constitute contributory copyright infringement in the alternate reality in which the Supreme Court in _Sony_ held for the plaintiff. Explain why it would be illegal, treating Justice Blackmun's opinion as authority.  Be as imaginative as you can in your choice of technology.

And then it hit me.  Left click, highlight, right click, copy, and paste.  You can go to any website, highlight over any passage or picture, copy it, and do as you please with it.  While not technically “for sale”, the copy and paste feature is inherent in every computer sold in the market today. 

You can copy any passage.  You can copy exact replicas of any picture.  This copy and pasting would constitute contributory copyright infringement in Blackmun’s eyes.  The copy/paste feature on any computer can be used for one’s own work and editing, but it is more likely to be used as copyright infringement.  Any author’s, photographer’s, or artist’s work on the internet can be mine at the click of 2 buttons on my mouse without the author’s consent.  How can this be legal?

technology in the face of copyright law

A DVD burner is a modern day technology which is legal to sell and could constitute contributory copyright infringement under the Blackmun opinion.  The content on the DVD is copyright protected and providing the public with a device, a DVD burner that would allow the reproduction of such content, without the author’s authorization limits the author’s ability to cut off access to his/her work.  Copyright law affords the creator of copyright protected work the exclusive right to control the reproduction of his/her work.  The reproduction of a copyrighted work is for the sole benefit of the user and does not result in any added benefit to society because making a duplicate copy of the author’s original work does not add any external benefits to society other than copying.  Thus, the use of a DVD Burner is an unproductive use and results in harm to the market for the copyrighted author’s work because it reduces the author’s ability to sell and rent copies of the work for a price where they would be able to get a profitable return for their creation since the people can just rent DVD’s and make illegal copies and sell it for cheaper.  Once the public can get the illegal copies of DVD’s for cheaper then the public has no need to rent or even buy the legal DVD’s.  This in turn frustrates the purpose of copyright law because authors would have less of an incentive to create and could potentially result in the reduction of the progress of science and the arts.             

Assignment 8 - The Effects of Sony

An MP3 player is a technology that is legal to sell in our world, but the sale of which would constitute infringement in the alternate reality. According to Blackmun’s dissent, when the proposed use of a product is an unproductive one, a copyright owner need prove only a potential for harm to the market for or the value of the copyrighted work.  Blackmun says that a productive use adds some benefit to the public beyond that produced by the first author’s work.  Just as a making of a videotape recording for home viewing is an ordinary rather than a productive use, an MP3 copy of a song for listening on an MP3 player is also an ordinary rather than a productive use. The owners of the videotape recording and MP3 use the copy for the same purpose as the original. 

One must now look to see if there is any potential for harm to the market for or the value of the copyrighted work.  Statistics have shown that music industry sales have dropped dramatically respectively with the rising popularity of illegally downloaded digital music.  Logically, an MP3 (legal or not) cannot be played without an MP3 player. Plus once on MP3 players, songs unprotected by DRM technology can be duplicated and shared easily with other people. DRM technology has been proven unpopular to many of the MP3 player customers so many of the companies have turned away from it.  In fact, one of the biggest selling points of Zune is that it has a large DRM free library.  Therefore, since the MP3 player has an unproductive use and causes a potential harm to the market for or the value of the copyrighted work (by allowing one to play illegally downloaded songs and allowing one to transfer songs to other users illegally), it should constitute infringement.

DeCSS

Something that could be found as contributory infringement in the Sony alternate reality would be the DeCSS software [and similar programs] for DVD ripping. This software defeats the Content Scrambling System, which is an encryption and authorization scheme that was intended to prevent DVDs from being digitally copied.

The main intention of the software is circumvent the copy protection technology applied to DVDs and to decrypt movie files. The software allows an unencrypted source video, once it is available in digital form, to be copied without degradation, making copyright infringement highly likely. This software can be easily found over the internet, in public court records, and even on t-shirts.

Any non-infringing use arguments are based on the fact that DeCSS was developed to allow DVDs to play on the Linux operating system. Linux was excluded from CSS licensing, so DeCSS allows DVDs to play on the system, which is allowed under the WIPO laws [in the US– the Digital Millennium Copyright Act]. This argument is weak however, since the DeCSS.exe program posted on the internet is a Windows application, allowing the same process for Windows operating system users.

1984 or Bizzaro Sony

After staring at a computer for longer than should be allowed, trying to make sense of Court opinions that attempt to anticipate the future, the bleary-eyed law student, wanted to blow off steam. He went to his wall of (copyright owner licensed) CDs and reached for Spoon’s, “Kill The Moonlight.” He wanted to hear “The Way We Get By,” but the CD was gone. Tuition forced him to move in with roommates and one-by-one his CDs had grown legs. If only he could digitally store the CDs he had purchased onto his computer he wouldn’t have to buy another physical replacement. Alas, “importing” and “burning” a backup, using some sort of application - call it a “digital media player” - was outlawed, would constitute contributory infringement. Even if it represented a new distribution model - where recordings could be purchased over the Internet - an application like that would never pass Blackmun’s test. The use would be infringement. No one would use it for noninfringing purposes alone. If only the Sony Court had held differently instead of finding the VCR unconstitutional. No, if he was going to rock-out tonight he was going to have to walk-out and buy another licensed copy.

Sony

The dissent in Sony reasoned that “when the proposed use is an unproductive one, a copyright owner need prove only a potential for harm”.  This potential harm through copyright infringement can come from many sources. One technology that under the dissent’s reasoning would be capable of this copyright infringement would be writable CDs.  Since they are often, if not predominately used to copy copyrighted music, their use would create a great potential for harm even though the actual sale of these CDs is legal.