2.1 The interactions of copyright law with digital technology
The discussion on the frictions between copyright law and development of digital technology must be carried out in the light of Sony Corporation of America v Universal City studios, Inc. The Sony precedent is a very important one and probably relied on by many technological developers to innovate without fear of liability for copyright infringement.
Of particular interest to digital technology developers in the Betamax case is the part of the judgement which states that the staple article of commerce had only be ‘capable’ of substantial non-infringing uses. This literally would mean that the technology must not be already used in non-infringing ways, but should possess the capabilities to be put to use in a manner that would not infringe copyright. Neither does it mean that the primary use of the technology at the relevant time must be non-infringing. That pronouncement can be said to be futuristic in tone and not restricted to the present use of the technology; and ought to only require the defendant to provide evidence of possible non-infringing uses her technology could be put to, even if the users have not started using it as such.
The Betamax case was heralded by technology developers and consumers generally, and induced the development of innovative technologies which had copyright law at the centre of its’ use eg Sony Walkman, ipod etc. However, some digital technology innovators appeared to have relied too heavily on the judgement to their misfortune; their cases which are at the centre of this work will be discussed below with the Sony doctrine as a point of reference.
2.1 The internet and copyright infringement
The copyright industry had battled technological innovation throughout its’ history and have always been afraid that ‘the sky would fall’ each time a new technology emerged. Fortunately for copyright holders, the sky never fell but they appeared to benefit more from each new technology than they had imagined. However, with the arrival of the internet, the threat of the sky falling down has become real. The internet makes copyright infringement very easy, fast and ubiquitous. This is because the internet is not an isolated technology, but rather a new media which accommodates innumerable technologies. And unlike the Betamax machine, copyright owners cannot ask for the internet to be shut down or its’ ‘owner’ or ‘controller’ to be dragged before the courts and charged with secondary/contributory copyright infringement. Every aspect of the internet accommodates the exploitation of copyrighted works and the anonymity it makes its’ users feel encourages copyright infringement. Therefore rather than ask for the internet to be ‘disconnected’, copyright holders wait for persons to find ways to infringe copyright on the internet and then ask for their business models to be ‘disconnected’. This approach works most of the time but does not stop mass copyright infringement on the internet or even lessen it. The defendants in the following cases had divergent business models but all involved the internet and copyrighted works but lacked the authority of copyright owners.
UMG Recordings Inc v Mp3.com Inc
Admittedly, the defendant’s acts amounted to a reproduction of the works of the plaintiff without authorisation or license. However, the fact that the plaintiff could not prove that the acts in question caused it any damage at all cannot be ignored. In fact, the defendant adduced expert evidence that its’ services increased the sales of the defendant’s CDs. This evidence appears to be in line with common sense; because as users had to prove that they owned the copies of the CDs embodying the songs they wanted replayed, users who did not own the CDs yet may have been forced to purchase the CDs either physically or from the online services affiliated with the defendant. This should logically have increased the sales of the CDs as the activities of the defendant seemed to add more value to the plaintiff’s works; because persons may have been more inclined to purchase the CDs if they knew they could listen to it virtually anywhere and anytime they wanted. And also, the defendant had purchased thousands of CDs legally just to provide that service, which act in itself increased sales of the CDs in question.
Had the services been permitted to continue, it would have ensured that both the defendant and its’ subscribers were continually purchasing CDs which would positively affect the sales of CDs as the number of the defendant’s subscribers increased and the use of its’ services proliferated. Furthermore, the defendant’s business model may have inspired the creation of similar services by other innovators which may have increased sales of copyrighted works by similar or other means, but also which services may have amounted to a further development of the defendant’s technology. This may have inspired some more innovators to build on it to develop more innovative technologies which could have led to greater and better technological developments for the society’s benefit. But all that did not happen because the plaintiff wanted the defendant’s services shut down as it had begun to make arrangements to exploit the market itself but more importantly because the law had given it that exclusive right which it then used as a sword to cut down any development it sees as threatening its’ archaic business model. Unsurprisingly, the business model was not exploited by the plaintiff or other copyright holders afterwards even though it had given evidence of the agreements it had entered into for that purpose during the infringement suit. Maybe the plaintiff like most copyright owners are averse to any activity illegal or not which permits anyone else other than themselves to make financial gains from their works. And although it is not suggested that the court’s ruling was made in error of facts or the law, it is however suggested a less literal and more purposeful interpretation of the law and facts may have led to a different outcome. This is because, although the defendant obviously reproduced the works of the plaintiff, the plaintiff was however not harmed by it. It only relied on the fact that reproductions had occurred and did not even adduce evidence to disprove the expert evidence of the defendant that its’ activities had increased CD sales. The District Court was not at all sympathetic to the activities of the defendant as indicated by its’ statement on page 8 of the ruling that ‘[C]opyright, however, is not designed to afford consumer protection or convenience but, rather, to protect the copyrightholders’ property interests’.
The outcome of this case has not so much to do with the interpretation of the copyright law by the courts as it has to do with the effects of the unbridled exercise of copyrights-holders exclusive rights on technological innovation, particularly digital technology. No one can tell what the defendant’s services may have evolved into if it had been allowed to exist. Maybe it would have inspired likeminded individuals to reach new technological heights, or maybe it would have spiralled into oblivion. Maybe copyright owners could have discovered ways to make more money from the services like they did after they tried and failed to stop the use of the Betamax machine in its’ tracks. Mp3.com cannot really be blamed for trying to fill a gap in the demand and supply market for copyrighted works. Individuals wanted a ‘digital radio in the clouds’ from which their favourite music was played on demand, without having to physically lug the hardware around. And Mp3.com fulfilled their yearnings which made its services innovative to say the least; but it unfortunately failed to get the authorisation of the copyright owners in the process. However, from the copyright-owner’s perspective, the defendant infringed on their exclusive right to reproduce their works and did so for intended commercial benefits. The copyright-owner had probably invested large sums of money in recording and marketing the CDs and should be able to exploit all possible means to recoup its’ investment. And what is more, ignoring the defendant’s activities may have led to a slippery slope where the defendant may have become more daring and brazen to engage in other acts that may have brought real damages to the copyright-owner’s economic interests, so better to nip the problem in the bud. And if that did not happen, other less law-abiding innovators may have come along and emboldened by the inactivity of the rights-owners, may have developed more infringing business models and if there were more of those sort of innovators, then copyright-owners would have found themselves displaced from their rights and it would be too late to undo the damage. So the plaintiff chose the easiest option in its’ view, better to stamp out the technology and thereby send out a warning to other intending infringers that that sort of innovation would not be tolerated. Even though stamping out the technology may not have been in the best interests of the society.
A & M Records, Inc v Napster, Inc
Admittedly, Napster infringed with reckless abandon and deserved what it got because the copyright law is clear on what rights belonged to copyright owners exclusively. But what should have worried the copyright-owners should not have been how to shut Napster down, but rather why Napster accumulated so many million users within its’ short existence. They should have been deeply troubled that millions of normally law-abiding individuals were willing to throw caution to the winds and infringe copyright. This should have made them dig deeper to the actual roots of widespread digital infringements of their works to solve the real problem especially as it seemed to be a progression to more and more infringements after their win over Mp3.com, rather than a stoppage or reduction of infringement as they may have envisioned. Could it be that the consuming public wanted more than expensive music CDs or they had relocated online to become digital natives, or both? In retrospect, users at the time wanted both and the copyright owners should have known that had they been more open to innovation and less comfortable in the increasingly decreasing level of consumer satisfaction they achieved. Maybe if they had realized that the problem would not go away, they could have averted the onslaught of more innovative digital infringement that led to more infringement suits and increasing public resentment for copyright law.
MGM Studios, Inc v Grokster, Ltd
It could be said that this case seems to indicate that the Sony protection would only be available to good-faith defendants who cannot actively control what its’ technology is used for but rather who designs its’ technology to not be solely used to infringe copyright. Regardless, maybe the court should have focused more on the good that could come out of the use of the software as the court in Sony seem to have done rather than on the bad faith acts of its’ distributors because the importance of the Sony doctrine is the development of technology and its’ emphasis lays on the good the society can derive from using a technology and does not emphasize the acts of the defendant as such.
Furthermore, the principle of liability for copyright infringement laid down by the Supreme Court in this case appears a bit vague and accommodating. It seems that in a suit for inducing copyright infringement, the plaintiffs could adduce evidence of unrelated acts of the defendants intended or not which if taken together could lead to a conclusion that the defendants had knowledge of the infringing activities and actively induced same. This could create uncertainty with innovators as they may not know what acts of theirs copyright owners may choose to rely on to allege inducement as all acts relating to the development or distribution of the technology may be taken into account by the courts. This cannot be good for technological development if innovators have to be cautious and in fear of what they do or not in the course of pursuing technological innovation. Fortunately, this uncertainty has not seemed to stop innovators from pursuing further technological developments; although the doctrine may still be relied on by copyright owners in the future.
Since Grokster, the copyright industry has pursued similar defendants for infringement of copyright through p2p file-sharing systems. They brought suit against John Deep the developer and distributor of the Aimster (turned Madster) p2p software and obtained a preliminary injunction for contributory copyright infringement as well as secondary liability for infringement of its’ users. Also, they were able to shut down the Kazaa and Limewire p2p systems after their win against Lime wire. Then in a bid to scare individual users of p2p systems into respecting copyright law on the internet, they filed no less than 35,000 copyright infringement suits against individuals but only a few proceeded to hearing eg the Thomas-Rasset and Joel Tenenbaum cases. Remarkably, the p2p technology has survived the onslaught of litigation, growing ever popular regardless of the wins of the copyright owners on the file-sharing battlefield. The technology appears not to be dying quick and copyright owners may have resigned themselves to the harsh reality that they may just have to keep filing suits and lobbying for greater copyright protection, although they must have realised that stricter copyright laws do not equal fewer infringements especially online. Although the p2p file-sharing system is here to stay, other legal battles involving innovative digital technologies and alleged copyright infringements will be analysed.