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Abstract: Suing actual infringers is passe in copyright law. In the digital environment, the real stakes lie in suing those who facilitate infringement by others. There is of course a good reason copyright owners are filing such suits. They see themselves as under threat from a flood of cheap, easy copies and a dramatic increase in the number of people who can make those copies. The high volume of illegal uses, and the low return to suing any individual, make it more cost-effective to aim as far up the chain as possible. From the perspective of the movie industry, it's easier and more effective to shut down Napster than to sue the millions of people who traded files illegally on Napster. So far, the courts have been willing to go along, shutting down a number of innovative services in the digital music realm. In this article, we argue that unrestricted liability for anyone who is in any way involved with copyright infringement is a bad idea. Indirect liability is a continuum, in which acts most closely related to infringement and with the fewest affirmative benefits are the easiest to condemn. Going after makers of technology for the uses to which their technologies may be put threatens to stifle innovation. The fundamental difficulty is that while courts can make decisions about direct infringement on a case-by-case basis, lawsuits based on indirect liability necessarily sweep together both socially beneficial and socially harmful uses of a program or service, either permitting both uses or condemning both. Optimal digital copyright policy would do two things: stop deterring innovators, and permit cost-effective enforcement of copyright in the digital environment. In this paper, we suggest at least two possible alternatives that might provide ways out of the digital copyright morass. Both alternatives stem from the basic economics of copyright enforcement. It is not currently cost-effective for copyright owners to sue individual infringers, because there are tens of millions of them, because lawsuits are expensive, and because each infringer would be liable only for minimal damages. They are happy to sue facilitators instead, because there are fewer of them and both damages and the benefits of injunctive relief are substantial. Copyright owners have no incentive to permit optimal innovation by facilitators, because they do not benefit from that innovation except indirectly. Individual infringers in turn have no incentive to change their behavior or to subscribe to fee-based services, because they suffer none of the costs of infringement. One solution is to change the incentives of individuals. Because individual users of peer-to-peer (p2p) networks know that it is extremely unlikely they will be sued, economic theory suggests that the only way to effectively deter infringement is to increase the effective sanction substantially for those who are caught. Were the government to begin criminally prosecuting selected users of peer-to-peer services - or were the RIAA to sue end users in earnest - it could have a substantial deterrent effect on many illegal users. Selective prosecution has other advantages as well - the government could target the relatively few keystone providers of illegal files on p2p sites, and those are precisely the users who are least likely to be engaged in fair use. While particular prosecutions won't stop illegal file trading altogether, copyright owners have never been able to prevent all piracy. All they need to do is reduce piracy enough that they can make a return on their investment. Another solution is to change the incentives of copyright owners to sue individual infringers by reducing the cost of such a suit. One such approach would be a levy system. Levies on equipment or services have the virtue of permitting automatic collection of royalties, reducing the enforcement cost dramatically, but at the cost of taxing legal as well as illegal uses. A levy solves the enforcement problem at the front end, but it is similar in many ways to the current approach of suing facilitators. The main difference is that under a levy system the copyright owner is protected by a compulsory license rather than a property rule. An alternative proposal to reduce the cost of enforcement is to create some sort of quick, cheap arbitration system that enables copyright owners to get some limited relief against abusers of p2p systems. The existing domain name trademark arbitration system is a model in some respects - its speed and low cost - but a cautionary tale in others - its lack of process protections. Such a system would permit low-cost enforcement of copyright infringement against direct infringers, reducing the need for content owners to sue facilitators. Relative to levies, an arbitration system would trade off some increase in cost for accuracy, targeting only those making illegal uses rather than all users of computers or p2p networks. It would be fairer than selective criminal prosecution, because the burden would fall more evenly on each wrongdoer, rather than imposing stark punishment on a few in order to serve society's interest in deterring the rest. The system could also be designed to improve accuracy relative to the binary choice the courts face in indirect infringement cases today. We could design the system so that it is limited to clear cases. We could also build in a defense for arguable fair uses, so that a user who could prove they were space-shifting CDs they already own would have a defense.
Abstract: Millions of people now use the Internet to obtain access to recorded music. Internet music transmissions are likely to reshape the ways in which music is both created and delivered to consumers, although there is little agreement on which new model or models will emerge as predominant in the music industry. Copyright law should facilitate the development of legitimate dissemination of music over the Internet because such dissemination promises to significantly increase public access to copyrighted music. Copyright law, which fundamentally strives to increase the accessibility of creative works, should help rather than hinder dissemination of music over the Internet because of its potential for increasing the availability of music to users. Part I of the Article explains current copyright law governing music transmissions over the Internet. This existing legal framework is a very complex patchwork of overlapping and interacting provisions that have been shaped by a century of legislation and business practices, most of which developed in an era of traditional, non-networked exploitation of music. Part II examines how applying copyright law to downloading and streaming audio, the two major types of Internet music transmissions today, makes it very difficult for Internet transmitters to make such transmissions legally, even if their activities come within a copyright exemption or compulsory license. Current copyright law poses two main types of problems for those who wish to legitimately disseminate music over the Internet. First, there are transactions cost and potential "hold out" problems. Because any single piece of recorded music usually embodies two separate copyrighted works, and because transmitting that music over the Internet may involve two separate rights in each of those works, and because each right in each work may be owned by a different entity, the transactions costs involved in obtaining permission to transmit any volume of recorded music over the Internet can be significant. Second, although Congress has crafted a number of copyright exemptions and compulsory licenses in order to encourage activities that it concluded should not be under the exclusive control of copyright owners, Internet transmissions - by simultaneously implicating more than one right of the copyright owners - may make it impossible to engage in such Congressionally sanctioned activities without obtaining additional permission from a copyright owner, thus reducing the usefulness of, or entirely nullifying, the licenses and exemptions Congress granted. Finally, Part III suggests and evaluates possible solutions to these problems that would continue to protect copyright owners' ability to exploit their works while making legitimate Internet music transmissions more feasible for users of those works. The article recommends, at the least, extending existing compulsory licenses and exemptions for digital performance transmissions of sound recordings to also cover all incidental RAM storage of any copyrighted work in the course of those transmissions.
Abstract: Copyright law's first-sale doctrine allows the owner of any particular lawful copy of a copyrighted work to resell, rent, lend, or give away that copy without the copyright owner's permission. The article first considers the effects the first-sale doctrine has had as part of a copyright system in which many types of works are disseminated by the distribution to the public of tangible copies that can be retransferred by the copy owner to others who can just as easily use the copy to access the work. These effects have largely been to increase the affordability of copies of works (primarily by providing secondary sale, rental, and lending markets that can offer access at a lower price than that charged by the copyright owner for the purchase of a new copy) and the availability of works (by making it possible to obtain access to a work when it goes out of print or when a copyright owner withdraws or suppresses it and by increasing the likelihood that a copy or copies of the work will be preserved over time). Next, the article considers how a shift to digital dissemination - both via transmissions over digital networks and in the form of technologically protected digital copies - may well result in the existence of fewer freely transferable copies of copyrighted works that can be distributed without the copyright owner's consent under the first-sale doctrine. The article then considers how this shift might affect the affordability and availability of copyrighted works. As to affordability, the article concludes that the shift's effect may be positive in some respects but may pose particular problems for library lending, perhaps the most affordable form of access. As to availability, the article concludes that the shift to digital dissemination may give copyright owners more complete control over access to copyrighted works and in particular may eliminate the preservation benefits of widespread distribution of copies that are legally and practically transferable under the first-sale doctrine. The article ends by suggesting some steps that might be taken, particularly with respect to fostering availability of copyrighted works, should the predicted effects of a shift to digital dissemination begin to materialize.
copyright, first sale, digital networks, preservation, libraries, encryption, technological protection measures
Abstract: We have argued elsewhere that peer-to-peer (p2p) file sharing poses significant new challenges to the enforcement of copyright law. Copyright owners' initial response to these challenges - to try to shut down the technologies that facilitate file sharing - is bad for society. We suggested that it would be preferable to lower enforcement costs for copyright owners by making dispute resolution by copyright owners against direct infringers quick and cheap, so that copyright owners would be more inclined to pursue such direct infringers instead of suing innovators. While enforcement costs are likely always to be too great to allow pursuit of every infringer, lower costs would allow for enforcement against more infringers, increasing any given infringer's chance of being sued. In this article, we explain how such a dispute resolution system might work, and propose a draft amendment to the copyright act to implement the system.
Abstract: Copyright holders and some courts have urged the "RAM copy" doctrine in an attempt to extend copyright to computer networks. The controversial doctrine - the notion that accessing a work on a computer infringes the reproduction right because it requires a temporary copy in the computer's random-access memory ("RAM") - is a strained and problematic attempt to use copyright law's familiar reproduction right to solve some of the problems raised by the use of copyrighted works over computer networks. The doctrine threatens to create significant problems as more works are used in digital form, and has the potential to give copyright owners excessive control over use of their works. The "RAM copy" doctrine is not needed. Congress created the public display right precisely for the purpose of controlling the use of copyrighted works on computer networks. The right to display a copyrighted work publicly is probably the least familiar exclusive right of a copyright owner; until recently it was not needed to resolve any important controversies. Changing technology is now presenting precisely the problem that the display right was designed to solve, but courts and lawyers continue to neglect the right. Reinvigorating the public display right would provide a more balanced mechanism for protecting copyright owners' incentives to create and exploit works in a digitally networked world without unduly diminishing access to those works.
Abstract: This article looks at the legal regime designed to protect copyright owners' technological control measures against circumvention efforts. The article considers how Chapter 12 of current copyright law, enacted as part of the Digital Millennium Copyright Act, treats different controls - access controls and rights controls - differently, offering more protection for access controls. Congress afforded rights controls less protection, the article argues, in order to allow users to make noninfringing uses of copyrighted works even when copyright owners have applied technological protection measures. The disparate levels of protection might offer copyright owners an incentive to prefer access controls over rights controls. More significantly, it may lead copyright owners to adopted "merged" control measures which function as both access and rights controls. If courts treat such merged controls as entitled to the legal protections granted to both access controls and rights controls, they may hinder users from engaging in permitted circumvention of rights controls for noninfringing purposes without facing liability for prohibited circumvention of an access control. Because this would undermine Congress's goal of preserving noninfringing uses of technologically protected works, the article concludes by considering two legislative approaches to preserving noninfringing use in the face of merged controls.
copyright , DRM, technological controls, rights management, DMCA, circumvention, trusted systems
Abstract: American law generally imposes liability on anyone who infringes a copyright, regardless her mental state, and even if her infringement is innocent - that is, when she engages in infringing activity without reason to know that her conduct infringes (perhaps most commonly when she knowingly copies from another's work but reasonably believes that her copying is legally permissible). This is true even though one of copyright law's most important goals is distinguishing legitimate copying, which is encouraged, from illegitimate copying, which is to be deterred. Courts and commentators have paid little attention to this aspect of copyright law. This article demonstrates that from its inception, copyright law in Great Britain and the United States reflected a substantial concern that innocent copyright infringers not be punished and explores in detail the mechanisms used to achieve that goal. These included structuring the copyright system to make it easy for users of works of authorship to avoid infringement and limiting liability for certain kinds of infringement to instances in which a party knew her acts were infringing. The article then shows how between 1909 and 1989, almost all of copyright law's safeguards protecting innocent infringers disappeared. The changes occurred gradually, and mostly for reasons entirely unrelated to innocent infringement. The end result, though, was a great increase in the likelihood that innocent infringers will be held liable. The only protection offered to unknowing infringers is limited remedial relief, which is a very weak bulwark against the danger that liability will deter permitted uses of copyrighted works. The public's ability to use copyrighted works without the owner's consent in ways that the law encourages - including making fair use of a work, or using the work's unprotected ideas - is undermined when users who innocently exceed the scope of the law's permission face liability.
Copyright, history, innocent infringement, mental state
Abstract: This article studies the implications of a recent radical innovation in American copyright law, which has received little attention in copyright scholarship. Traditionally, U.S. copyright law protected an unpublished work as long as it remained unpublished (potentially in perpetuity), and then continued to protect it for a period of years after publication. The article first explains how, starting in 2003, a change to U.S. copyright law took effect that resulted in the copyright expiring on virtually every work of authorship that was created by anyone who died more than 70 years ago and that has never been published.
Next, the article categorizes unpublished works and explores the quantity and quality of the various types, especially private works (such as journals, correspondence, never-published literary manuscripts, etc.) and preparatory works (early drafts of works that were later published in revised form).
The article then surveys the implications of placing unpublished works in the public domain. Ending indefinite copyright protection is one of the few ways in which copyright protection has been reduced in recent decades and will facilitate much greater use of unpublished material. Because many other countries continue to protect older, unpublished works, the United States is largely pioneering unknown territory by eliminating copyright for such works, and unpublished material that is in the public domain in the United States may remain protected elsewhere. Most significantly, this change fundamentally alters our conception of the public domain, which until now has always been a body of material that both is legally free for the public to use and has been made available to the public. The evolution of the public domain to include a significant amount of unpublished material may affect the legal regulation of the public domain.
In that regard, the article considers how those who own copies of unpublished public domain works (such as archives) may use legal mechanisms other than copyright law to continue to control those works. They may, for example, try to control whether a work gets published by allowing access to that work only under a contract that bars any publication. While such contracts might be seen as interfering with federal copyright policy, the article argues that copyright law probably would not preempt the enforcement of such contracts. Once unpublished public domain works are finally published, the publishers might wish to prevent competitors from using those works. They might therefore attempt to persuade Congress to grant them some period of exclusive, copyright-like protection, pointing to recently enacted laws in the European Union that in fact grant a 25-year copyright to the first person to publish a previously unpublished public domain work. The article explains why the Constitution may well give Congress the power to grant such a "publication right" in public domain works, but why such a right would be undesirable.
Copyright, public domain, unpublished works
Abstract: The Supreme Court's Grokster decision purports to leave in place the test announced in Sony for analyzing secondary liability claims against a defendant who merely supplies a copying device (without inducing users of the device to infringe): liability in such circumstances is proper only if the device is not capable of substantial noninfringing uses. This Symposium Article considers one aspect of how to understand the Sony standard - the temporal element of such capability. Does the passage of time affect whether a device is capable of substantial noninfringing uses, and if so how? I suggest that the test has a temporally dynamic dimension, so that a device that might be capable of substantial noninfringing uses today might no longer be capable of such uses tomorrow. Part I considers how the substantial noninfringing uses of a device might change over time. First, as to what constitutes a noninfringing use, I consider ways in which the very same use of a device might change its character, such that the use is noninfringing today but later becomes infringing (or vice versa). Second, as to whether the noninfringing uses of a device are substantial, I consider how the amount of a particular noninfringing use might change over time, so that the substantiality or significance of noninfringing uses changes. Third, I consider briefly changes in the uses of unprotected material. Part II considers how to determine the uses of which a device is capable, and suggests that the term capable might be interpreted not to refer to the device's technological capacity but rather to the ways in which people actually use the device, which may be significantly more subject to change over time. I argue that Justices Ginsburg and Breyer, in their concurring opinions in Grokster, in fact view the Sony test this way, as asking whether there is a reasonable prospect or plausible likelihood that over time a substantial portion of the actual uses to which the device is put will be noninfringing uses. Thus, both opinions can be read to suggest that a device supplier is shielded by Sony only if the device either is already widely used for legitimate, unobjectionable purposes as Sony itself stated, or if it is likely to become widely used for such purposes in the future. Part III concludes by briefly identifying some of the implications of this temporally dynamic view of the capable of substantial noninfringing uses test.
Copyright, Secondary Liability, Sony
Abstract: In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge. Satisfactory treatment of the issue requires examination of a diverse array of difficult questions, ranging from murky corners of procedural due process and takings jurisprudence, to qualified immunity, the unconstitutional conditions doctrine, and U.S. obligations under international treaties and trade agreements. Very broadly, the article advances three broad conclusions. First, notwithstanding the Court's rejection in Florida Prepaid of one particular statute purporting to abrogate state sovereign immunity in patent disputes, a more limited abrogation strategy might yet succeed. In particular, we conclude that Congress could very probably restrict abrogation to cases of non-negligent state infringements of intellectual property rights in circumstances where the state can be shown to provide inadequate remedies. We also observe, however, that such an approach is unlikely to accomplish much of what Florida Prepaid's critics would like. Second, a much-discussed proposal that states be required to waive all of their sovereign immunity from intellectual property suits in order to receive any federal protection for their own works and inventions is unlikely to pass constitutional muster, although if Congress remains attracted to a conditional waiver strategy, it might have some avenues open to it. Third, given the continuing availability of injunctive relief, the United States may presently be in substantial compliance with its international treaty obligations notwithstanding the Court's decisions. But if Congress wishes to provide foreign intellectual property holders with damages remedies against the states, attempts to ground abrogation on the Treaty Power or via qui tam suits will probably prove unconstitutional.
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