Section 10.3. Secondary Liability


10.3. Secondary Liability

Copyright law has not been strictly limited to the direct infringers, but may be extended to those who "contribute" to the infringement in an ongoing relationship with the infringer, or with special-purpose equipment suited only for infringement. Thus, the proprietor of a hall, who looks the other way while paying guests listen to unlicensed music, can be held vicariously liable for the infringing public performance, and the seller of tapes of a length precisely timed for copying particular copyrighted albums could be held contributorily liable for the subsequent infringing use. Extended too far, however, secondary liability chokes off innovation.

Twenty years ago, the Supreme Court rejected Universal and Disney's "unprecedented attempt to impose copyright liability upon the distributors of copying equipment" with the ruling that manufacturers of devices "capable of substantial non-infringing use" could not be held secondarily liable. The MGM v. Grokster lawsuit, an attack by all the major record labels and movie studios against Grokster and Streamcast, maker of the Morpheus filesharing software, is nothing short of an all-out assault on the Sony standard.

The studios argue that Grokster and Streamcast should be liable because many users of the peer-to-peer software infringe copyrightsnotwithstanding that many others transfer public domain works from Project Gutenberg or the Internet Archive; freely licensed works including open source software and Creative Commons-licensed media; or government works. They argue that the producers of software should be held liable for its "predominant" or "principal" use. Their standard is unworkable both to an entrepreneur financing an untested product and to an open source developer releasing software, any of whose users could adapt it to an unintended, infringing purpose.

Under the Betamax standard, makers of multiuse devices such as the VCR could thus offer them to the public without fearing that they might be held liable if customers misused them to infringe copyrights. With this assurance, hardware makers built components with open interfaces, including CD and DVD burners and massive hard drives, without fearing that someone might put the Plextor on the copyright hook by using that CD burner for large-scale copyright infringement. They built copying devices to transfer content. Software makers, too, have safely offered highly configurable and open source software with relative confidence that their users' configurations won't land them in hot water. The studios' proposed redefinition threatens that freedom to innovate.

Grokster is thus much bigger than peer-to-peer. An expansion of copyright liability, with a "predominant use" test, would make it safer to produce limited-purpose, non-user-modifiable devices and software than open hardware and open source software, regardless of the intent of the developer.

If secondary liability for those who "contribute" to infringement in some ill-defined way weren't enough, the entertainment industry is likely to return to Congress with pleas of renewed urgency to pass the INDUCE Act, which stalled last term. That proposed bill would add yet another level of indirect liability: "inducing" infringement of copyright would extend beyond those who made the tools, to those who explained how to make them work. Watch out that your documentation isn't too thorough!



Open Sources 2.0
Open Sources 2.0: The Continuing Evolution
ISBN: 0596008023
EAN: 2147483647
Year: 2004
Pages: 217

flylib.com © 2008-2017.
If you may any questions please contact us: flylib@qtcs.net