Why is Betamax an Anachronism in the Digital Age? – Erosion of the Sony Doctrine and Indirect Copyright Liability of Internet Technologies
Vanderbilt Journal of Entertainment and Technology Law, Vol. 7, p. 343, January 2005
24 Pages Posted: 24 Jun 2011 Last revised: 15 Apr 2014
Date Written: January 1, 2005
Universal City Studios v. Sony Corporation of America (the “Sony case”) is well recognized by the copyright bar as a landmark of indirect copyright liability. While copyright holders cried doom for the advent of a new communications technology, namely Betamax Video Tape Recorder (“VTR”), the Supreme Court made a wonderful effort to preserve the delicate balance between competing interests of retaining incentives to intellectual creation in works of authorship and enhancing technology innovation in other areas of commerce. On the one hand, it held that the absence of any explicit language in the Copyright Act did not preclude the possibility of indirect copyright liability; on the other hand, by analogizing the “staple article of commerce” theory in the Patent Act, it denied imposing indirect copyright liability on providers of copying technologies that may be used to infringe copyright, but be capable of substantial noninfringing uses. The wisdom of such holdings was later proven by a prosperous home entrainment market, from which both copyright holders and VTR manufacturers greatly benefited.
Twenty years later, confronted with another edge-cutting information technology featuring digitalization and Internet, copyright holders once again resort to indirect copyright liability of technology providers such as those operating electronic bulletin board system or peer-to-peer file sharing system. Accordingly, the Sony case unsurprisingly becomes one of the most frequently quoted cases by courts of Internet-related copyright cases. The essence of the Sony doctrine however appears not to be faithfully followed all the time. Some lower courts conjured up various formulas to narrow or even preclude the application of the Sony doctrine, including the dichotomies of contributory infringement versus vicarious liability, products versus services, actual knowledge versus constructive knowledge, etc.
This article aims to examine whether, as some courts indicated, the Sony doctrine is largely irrelevant in the cyberspace and, if the answer is no, how courts should properly apply the Sony doctrine to protect copyright holders’ legitimate interests and further the innovation and prosperity of Internet technologies in the meantime. This article argues that the Sony doctrine should be given as wide application as possible and not subject to any preconceived formula. In the digital age, the test of “capable of substantial noninfringing uses” is still well suited to advance the ultimate objective of the Copyright Law contemplated by the Supreme Court as well as by the Constitution: “promot[ing] the Progress of Science and useful Arts”.
Section II begins with a historic brief of the Sony case, the real image of which might have been blurred by curbed or even manipulative quotations in numerous subsequent cases. Section III analyses some lower courts’ readings of the Sony doctrine, elucidates why they probably misapplied the Sony doctrine, and proposes how the Sony doctrine should be applied. Section IV discusses the relevance of the Sony doctrine in the digital age, arguing that the Sony doctrine remain one of the most favorable and forceful safeguards for the general public’s interests in technology innovation and free flow of information. Section V summarizes the main points of this article and presents several policy recommendations.
Keywords: Copyright, Indirect Liability, Contributory Infringement, Vicarious Liability, Sony
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