Short thoughts on Grokster
I don't have the time right now to tackle Grokster and its new "inducement" theory of copyright infringement in any detail. I do find it odd, however, that Congress got pilloried awfully quickly for its INDUCE Act proposal a year ago -- but nobody's proposing a raid on Justice Souter any time soon (at least not for this opinion ... however, someone is looking to seize Souter's NH farm for a new hotel ... the karmic wheel keeps turning).
I'm also having trouble understanding the adoption of an "intent" element into what has been a strict liability regime. In the long run, that conversion seems more important than the fact that a P2P network is under fire. Copyright infringement has never asked "did you mean to copy"-- Instead, the basic premise is "did you copy, and did you have permission to copy."
The trial court now has to assess whether there was a true difference in the intent behind creating and distributing Grokster instead of a Betamax. Good luck -- The Shadow may know what evil lurks in the hearts of men, but the justice system should require something more than a guess or instinct in civil cases.*
Traditional copyright infringement is based on:
- existence of an "original" work fixed in a tangible medium of expression.
- access to the original copyrighted work (yes, there's an independent invention defense, though it's hard to maintain in an age of information overload).
- the use of some portion of that original work in a new work.**
- no legitimate or protected reason for the reuse, i.e. one of the statutory exemptions in sections 108 to 122 of the Copyright Act, or the common law "fair use" defense enshrined in Section 107.
Whether the defendant intended to copy is completely irrelevant (see, e.g. George Harrison's loss for copying the Shirelles' "She's So Fine" in "My Sweet Lord") -- the black box function of infringement turns on exclusive rights (section 106) and violation of those rights.
Harms and damages based on intent require proof beyond a reasonable doubt. Intent isn't something that we should be proving by a mere preponderance of the evidence -- but that's exactly what the Supreme Court has now ordered. I do worry about muddying the waters this way, even if it is a "full employment" act for my professional colleagues in the copyright bar.
* No, I'm not delving into a pop-psychology angle about juries. In the age of non-stop Law and Order re-runs across multiple cable channels, I don't find it all that interesting, and I'd like to believe (naively, if necessary) that juries do decide cases on facts, not instincts or fancy arguments.
** "How much is too much" remains an open question in the sampling world -- compare Newton v. Diamond, the 9th Circuit opinion allowing the Beastie Boys' flute sample in "Pass The Mic," to Bridgeport Music v. Dimension Films, the absurd and directly contrary 6th Circuit opinion finding copyright infringement in a two-second, three-note P-Funk guitar arpeggiation... another issue I need more time to tackle.
Leave a comment