Legal realism in action: Indirect copyright liability's continuing tort framework and Sony's de facto demise

UCLA Law Review

Volumn 55, Issue 1, 2007, Pages 143-204

  Menell, Peter S ^a   Nimmer, David ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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EID: 37149040395     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (385)

1. 464 U.S. 417 (1984).
2. See generally Pamela Samuelson, The Generativity of Sony v. Universal: The Intellectual Property Legacy of Justice Stevens, 74 FORDHAM L. REV. 1831 (2006).
3. Sony, 464 U.S. at 442.
4. Randal C. Picker, Rewinding Sony: The Evolving Product, Phoning Home and the Duty of Ongoing Design, 55 CASE W. RES. LREV. 749,753 (2005).
5. See Jessica Litman, The Sony Paradox, 55 CASE W. RES. L REV. 917, 951-60 (2005);
6. Samuelson, supra note 2, at 1850;
7. Roger Parloff, The Real War Over Piracy; From Betamax to Kazaa a Legal Battle Is Raging Over the "Magna Carta of the Technology Age," FORTUNE MAG., Oct. 27, 2003, at 148.
8. John Borland, File Swapping vs. Hollywood, CNET NEWS.COM, Jan. 25, 2005, http://news.Klnet.com/2100-9588_22-5548781.html. The "ordinary PC" actually predates Sony by several years.
9. See Andrew Pollack, Big I.B.M.'s Little Computer, N.Y. TIMES, Aug. 13,1981, at Dl.
10. 545 U.S. 913 (2005).
11. See Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988). The defendant had reverse engineered the plaintiffs copy-protection software and was selling a software product that circumvented this technology.
12. See Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified at 17 U.S.C. §§1201(a)(2), 1201(b)(1) (2000)) (imposing liability on companies trafficking in decryption keys that circumvent technological protection measures).
13. See Peter S. Menell & David Nimmer, Unwinding Sony, 95 CAL. L. REV. 941 (2007).
14. Pub. L No. 94-553,90 Stat. 2541 (codified as amended at 17 U.S.C. §§101-1101 (2000)).
15. Ch. 320, 35 Stat. 1075(1909).
16. See infra Part II.
17. Nonetheless, fear of what seemed around the corner has at times induced the U.S. Congress to adopt amendments to the Copyright Act of 1976 regarding problems that never have manifested, with unfortunate results. See David Nimmer, Codifying Copyright Comprehensibly, 51 UCLA L. REV. 1233, 1327-44 (2004) (detailing such amendments as those concerning digital tape, semiconductor chips, and vessel hulls).
18. See infra Part III.A.
19. 114 F. Supp. 2d 896 (N.D. Cal. 2000), affd in part, rev'd in part, 239 F.3d 1004 (2001).
20. 334 F.3d 643 (7th Cir. 2003), cert. denied sub nom., Deep v. Recording Indus. Ass'n of Am. (RIAA), 540 U.S. 1107 (2004).
21. 380 F.3d 1154 (9th Cir. 2004).
22. The final installment of this trilogy focuses on the U.S. Supreme Court version of Metro-Goldwyn-Mayer Studios Inc. v. Grolcster, Ltd. See infra note 221.
23. See infra Part III.B.
24. See infra Part IV.
25. See infra Part I.B.
26. 35 U.S.C. §271(c) (2000).
27. See Borland, supra note 6.
28. See Home Recording of Copyrighted Works: Hearings Before the Subcomm. on Courts, Civil Liberties, and the Admin, of Justice of the H. Comm. on the Judiciary, 97th Cong. 8 (1982) (statement of Jack Valenti, President, Motion Picture Association of America, Inc.) (suggesting that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone").
29. See infra Part H.A.
30. See HAROLD L. VOGEL, ENTERTAINMENT INDUSTRY ECONOMICS: A GUIDE FOR FINANCIAL ANALYSIS 62 (5th ed. 2001);
31. see also Lauren Lipton, VCR (Very Cool Revolt): Home-Taping Habits Are Lagging Behind Original Predictions, L.A. TIMES, Aug. 4, 1991, at TV Times 2 (reporting that use of VCRs to record television programming had dropped significantly and just 11 percent of households with VCRs were responsible for more than half of all the taping that occurred).
32. See infra Part III.B.
33. See infra Part IV.C. Using Sony as a guide, counsel to one of the Grokster defendants offered the following checklist for designing peer-to-peer software enterprises to avoid liability: Can you plausibly deny what your users are up to?... Have you built a level of 'plausible deniability' into your product architecture? If you promote, endorse, or facilitate the use of your product for infringing activity, you're asking for trouble- Software that sends back user reports may lead to more knowledge than you want. Customer support channels can also create bad "knowledge" evidence. Instead, talk up your great legitimate capabilities, sell it (or give it away), and then leave the users alone. Disaggregate functions- - - - - In order to be successful, peer-to-peer networks will require products to address numerous functional needs-search, namespace management, security, dynamic file redistribution, to take a few examples. There's no reason why one entity should try to do all of these things.... This approach may also have legal advantages. If Sony had not only manufactured VCRs, but also sold all the blank video tape, distributed all the TV Guides, and sponsored clubs and swap meets for VCR users, the Betamax case might have turned out differently- - - - - A disaggregated model, moreover, may limit what a court can order you to do to stop infringing activity by your users.
34. Fred von Lohmann, Elec. Frontier Found., IAAL [I am a Lawyer]: What Peer-to-Peer Developers Need to Know About Copyright Law, §V.7 (Dec. 2003)
35. quoted in Intentional Inducement of Copyright Infringements Act of 2004: Hearing Before the S. Comm. on the Judiciary, 108th Cong. (2004) (statement of Marybeth Peters, The Register of Copyrights), available at http://www.copyright.gov/docs/regstat072204.html.
36. See Menell & Nimmer, supra note 10.
37. See infra Part I.
38. See Menell & Nimmer, supra note 10.
39. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 439 (1984).
40. See Menell & Nimmer, supra note 10, at 947.
41. Id. at 951-52.
42. Justice Stevens previously stated that the case should be resolved by finding an implied immunity for home recording buried within the legislative history of the Sound Recording Act of 1971 and the Copyright Act of 1976. See Letter from Justice John Paul Stevens to Justice Harry A. Blackmun (Jan. 24, 1983) (copy on file with the UCLA Law Review).
43. 464 U.S. at 439 n.19 (citing United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948);
44. Fox Film Corp. v. Doyal, 286 U.S. 123, 131 (1932);
45. Wheaton v. Peters, 33 U.S. 591, 657-658 (1834)).
46. Paramount Pictures, 334 U.S. at 140.
47. Fox Film, 286 U.S. at 126.
48. Wheaton, 33 U.S. at 657-58.
49. Id. at 663-664.
50. Lawrence v. Dana, 15 F, Cas. 26, 61 (C.C. Mass. 1869) (No. 8,136).
51. Ted Browne Music Co. v. Fowler, 290 F. 751, 754 (2d Cir. 1923).
52. 22 F.2d 412 (E.D. Tenn. 1927).
53. Id. at 414.
54. See Dreamland Ball Room, Inc., v. Shapiro, Bernstein & Co., 36 F.2d 354 (7th Cir. 1929). The Supreme Court gave its imprimatut to such indirect liability in Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198-99 (1931); later rulings extended this doctrine.
55. See KECA Music, Inc. v. Dingus McGee's Co., 432 F. Supp. 72 (W.D. Mo. 1977);
56. Buck v. Crescent Gardens Operating Co., 28 F. Supp. 576, 578 (D. Mass. 1939);
57. Buck v. Newsreel, Inc., 25 F. Supp. 787 (D. Mass. 1938).
58. 316 F.2d 304 (2d Cir. 1963).
59. Id. at 307.
60. See Scribner v. Straus, 210 U. S. 352 (1908).
61. 222 U.S. 55, 62-63 (1911).
62. See Act of March 3, 1891, ch. 565, 26 Stat. 1106-07 (1891).
63. Scribner, 222 U.S. at 62-63.
64. 443 F.2d 1159 (2d Cir. 1971).
65. Id. at 1162.
66. See 17 U.S.C. §106 (2000 & Supp. II 2002).
67. S. REP. NO. 94-473, at 144 (1975);
68. H.R. REP. NO. 94-1476, at 162 (1976) (same, but spelling "tortfeasors" as one word);
69. see H. COMM. ON THE JUDICIARY, SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW: 1965 REVISION BILL 136 (Comm. Print 1965).
70. See H.R. REP. NO. 94-1476, at 61 ("The exclusive rights accorded to a copyright owner under section 106 are 'to do and to authorize' any of the activities specified in the five numbered clauses. Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers." (emphasis added)).
71. See id. at 159-60 ("To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.").
72. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY §1 cmt. a (1998).
73. Id. §2.
74. See GUIDO CALABRESI, THE COST OF ACCIDENTS 68-75 (1970).
75. See David G. Owen, Toward a Proper Test for Design Defectiveness: "Micro-Balancing" Costs and Benefits, 75 TEX. L. REV. 1661 (1997).
76. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY §2 cmt. f (1998).
77. See id. cmt. a.
78. See Menell & Nimmer, supra note 10, at 949.
79. The Supreme Court did not directly resolve whether archiving was fair use.
80. See Picker, supra note 4, at 753.
81. See Litman, supra note 5, at 951-60;
82. Parloff, supra note 5, at 148.
83. Picker, supra note 4, at 751-52, 766.
84. See supra Part I.B.
85. We have previously analyzed those pre-1984 issues. See Menell & Nimmer, supra note 10. The current effort focuses on events that have taken place since the Supreme Court's 1984 ruling.
86. See H.R. 4808, 97th Cong. (1981);
87. Andrew Pollack, Video Recorder Sales Go On, N.Y. TIMES, Oct. 21,1981, at D5.
88. See Home Recording Rights Coalition, History, http://www.hrrc.org/ index.php.?id=47&subid=6 (last visited Sept. 6, 2007).
89. See S. 1758, 97th Cong. (Ist Sess. 1981); Press Release, PR Newswire (Nov. 30, 1981), available at http://www.lexis.com.
90. H.R. 5707, 97th Cong. (1982);
91. see Michael Wines, Entertainment Industry Wants Congress to Make a Federal Case of Home Taping, 14 NAT'L J. 813 (1982).
92. See 17 U.S.C. §109 (2000). Note that the moniker is imprecise, inasmuch as first sale is not technically a prerequisite to its invocation.
93. See 2 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §8.12[B][1][a] (2006) (stating that a more accurate description would be "first authorized disposition by which title passes").
94. See Home Truths for Hollywood, ECONOMIST, July 30, 1983, at 72.
95. See Copyright Draft Faces Major Problems, BROADCASTING, May 28, 984, at 64.
96. See Howie Kurtz, Chariots for Hire; The Full-Blown/ Multimiliion Dollar! Lobbying War/ For the Affections of Congress! In Search of Videoland Gold!, WASH. POST, July 4,1982, at B1.
97. See The Bills Are Back, BROADCASTING, Jan. 31, 1983, at 33.
98. See H.R. REP. NO. 98-987, at 2 (1984).
99. See id.
100. Pub. L. No. 98-450,98 Stat. 1727 (codified at 17 U.S.C. §109(b) (2000).
101. A half-dozen years later, Congress extended the rental ban to computer software. See Computer Software Rental Amendments Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5134-37 (codified as amended at 17 U.S.C. §109(b) (2000)). As compared to the phonorecord situation in 1984, "the evidence is even more compelling in the case of software." H.R. REP. NO, 101-735, at 8 (1990) ($495 software rented for $35).
102. See JAMES LARDNER, FAST FORWARD: A MACHINE AND THE COMMOTION IT CAUSED 222-27 (rev. ed. 1987).
103. See id. at 267-88.
104. See Record Industry Seeks Surcharges on Taping, N.Y. TIMES, Oct. 31, 1985, at C21.
105. See OFFICE OF TECH. ASSESSMENT, U.S. CONG., COPYRIGHT AND HOME COPYING: TECHNOLOGY CHALLENGES THE LAW 12-35 (1989) [hereinafter OTA HOME COPYING STUDY], available at http://www.wws.princeton.edu/ota/disk1/1989/8910_n.html.
106. See Michael Isikoff, Meftenbaum Warns Record Industry, WASH. POST, Oct. 31,1985, at E3.
107. See OTA HOME COPYINO STUDY, supra note 88.
108. See William K. Knoedelseder, Jr., Record Industry Is Suddenly a Smash Hit; Fueled by Boom in Compact Discs, Firms' Fortunes Have Soared, L.A. TIMES, Oct. 15, 1987, at 1.
109. The parallels extend to Sony Corporation being named as the target defendant. See David Nimmer, On the Sony Side of the Street, 34 SW. U. L. REV. 205 (2004).
110. See Mark Potts, Music Industry Girds for War Over New Tapes; Digital 'Cloning' Technology Seen as Threat to Record Sales, WASH. POST, July 5,1987, at H1.
111. See Janet Clayton, U.S. Music Industry, Japanese at Odds; Bill to Limit Sale of Digital Tape Recorders Faces Test, L.A. TLMES, Mar. 25, 1987, at 1.
112. See Cahn v. Sony Corp., No. 90 Civ. 4537 (S.D.N.Y. filed July 9, 1990);
113. John Burgess, Sony Sued Over Digital Recorders; Songwriter, Publishers Seek to Block Sales, WASH. POST, July 11,1990, at B8.
114. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984).
115. As the mándala of history has continued to revolve, Sony itself has mutated into a motion picture studio. It therefore now finds itself allied with the likes of Disney and Universal, its erstwhile adversaries from the Sony days. See Nimmer, supra note 92.
116. See Stephen Levine, The Digital Duel Could Be Ending; Manufacturers, Music Industry Reach Pact, WASH. POST, July 11, 1991, at B8.
117. See S. REP. NO. 102-294, at 33 (1992) (stating that a "historic compromise" led to the dropping of the lawsuit and the fashioning of a legislative proposal);
118. see also Pub. L. No. 102-563, 106 Stat. 4237 (1992).
119. See H.R. REP. No. 102-873, pt. 1, at 9 (1992).
120. See id. at 10;
121. S. REP. No. 102-294, at 32-33;
122. CONG. REC. H9037 (daily ed. Sept. 22, 1992) (statement of Rep. McMillan) ("This is landmark legislation which clears the way for the next generation of home audio recording equipment and it was only worked out after years of negotiation.").
123. S. REP. NO. 102-294, at 40 (quoting the president of Tandy Corporation); 138 CONG. REC. H9037 (daily ed. Sept. 22, 1992) (statement of Rep. Lent) ("This compromise bill benefits everyone concerned-the manufacturers, the recording companies and artists, and, most importantly, the consumers.").
124. Fast forwarding, what is the upshot of this legislation? It has proven largely a dead letter, overtaken by technological advance (ripping music onto computer devices and MP3 players). See Nimmer, supra note 14, at 1331-34.
125. See 17 U.S.C. §1002(a) (2000).
126. For a detailed discussion, see 2 NIMMER & NIMMER, supra note 76, at eh. 8B.
127. 17 U.S.C. §1002.
128. 17 U.S.C. §1004 (2000 & Supp. IV 2004).
129. 17 U.S.C. §1006 (2000 & Supp. IV 2004).
130. See 17 U.S.C. §1008 (2000).
131. Id.
132. When the sale of a staple article of commerce contributes to infringement of patented technology by third parties, the effects are limited to a single patent or perhaps a cluster of no more than a handful of patents. Simply put, a device that contributes to infringement of a particular chemical patent or group of chemical patents is unlikely to infringe a large number of mechanical, electrical, or other chemical patents. Furthermore, the patent owner will have some ability to identify and pursue potential direct infringers by tracing the marketing patterns for the staple article of commerce. There is little reason to believe that a single staple article of commerce could threaten entire technology industries. By contrast, the distribution of at least some dual-use technologies can threaten the very economic foundation of entire content industries (and even multiple industries). Digital audio tape (DAT) posed a systemic threat to all owners of copyrights in musical compositions and sound recordings by enabling individuals to make perfect copies, which could then be distributed to others who could do the same. The costs of enforcing such rights at the direct infringement level would be prohibitive. Thus, the social and systemic benefits of being able to protect copyrights at the indirect infringement level, rather than at the end-use level, are substantial.
133. See S.REP.NO. 105-190, at 8 (1988).
134. See David Nimmer, Appreciating Legislative History: The Sweet and Sour Spots of the DMCA's Commentary, 23 CARDOZO L REV. 909, 917, 921 n.60, 937 & n.160, 938, 950 (2002) [hereinafter Nimmer, Legislative History];
135. David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. PA. L REV. 673, 686 n.66, 688 (2000) [hereinafter Nimmer, Riff].
136. See Pub. L No. 105-304, 112 Stat. 2860 (1998).
137. See 17 U.S.C. §1201 (2000).
138. S. REP. NO. 105-190, at 8;
139. see also H.R. REP. NO. 105-551, pt. 2, at 23 (1998).
140. 17 U.S.C. § 1201(a)(1)(A). Circumventing a technological measure means to descramble a scrambled work, to decrypt an encrypted work, or "otherwise to avoid, bypass, remove, deactivate, or impair a technological measures, without the authority of the copyright owner." Id. §1201(a)(3)(A).
141. Id. §1201(a)(2).
142. Unfortunately, it is difficult, and at times impossible, to isolate the access prong from the copying prong. See David Nimmer, InacCSSibility, in BENJAMIN KAPLAN ET AL., AN UNHURRIED VIEW OF COPYRIGHT, REPUBLISHED (AND WITH CONTRIBUTIONS FROM FRIENDS) 1, 26 n.130 (Iris C. Geik et al. eds., 2005) ("Indeed, it may be that the realities of our digital age are such that any manipulation of copyrighted works could be plausibly styled as implicating both access and a right of the copyright owner, meaning that Congress built its so-called vital distinction on sand.").
143. See H.R. REP. NO. 105-551, pt. 1, at 18-19; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64,556, 64,557 (Oct. 27, 2000) (codified at 37 C.F.R. §201).
144. See Nimmer, Riff, supra note 112, at 673.
145. Statutory damages can rise to $2500 for every single act of circumvention or product produced. 17 U.S.C. §1203(c)(3)(A) (2000). Thus, a single copyrighted work can give rise to millions of dollars in statutory damages if enough acts or products occur in relation to it. See id. § 1203(c)(4) (trebling those amounts for repeat violators). Those prospects markedly depart from traditional statutory damages.
146. See 17 U.S.C. §504(c)(1) (2000) (setting maximum damages "with respect to any one work," no matter how many times it is infringed).
147. See 17 U.S.C. §1204 (2000). The Digital Millennium Copyright Act (DMCA) addresses the many objections and concerns raised by various groups through a complex series of narrow exemptions. They apply to entities as diverse as law enforcement, radio and television broadcasters, libraries, and encryption researchers, and to activities as disparate as the filtering of content to prevent access by minors and protecting personal identifying information. See 17 U.S.C. §1201(d), (e), (g)-(i). For commentary about composition of the DMCA, see generally Nimmer, Legislative History, supra note 112, at 909.
148. See Pub. L No. 105-304, §201, 112 Stat. 2860 (1998).
149. See supra text accompanying note 115.
150. S. REP. NO. 105-190, at 8 (1998).
151. The definition of "online service providers" (OSPs) is very broad, extending to traditional Internet service providers (ISPs), see 17 U.S.C. §512(k)(1)(A) (2000), as well as to "a provider of online services or network access, or the operator of facilities therefor,"
152. id. §512(k)(1)(B).
153. Id. § 512(a).
154. Id. § 512(b).
155. Id. § 512(c).
156. Id. § 512(d).
157. See 3 NIMMER & NIMMER, supra note 76, §12B.04.
158. See Menell & Nimmer, supra note 10, at Part III.B.
159. See Shapiro, Bernstein & Co. v. H.L Green Co., 316 F.2d 304, 307 (2d Cir. 1963).
160. Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
161. See Menell & Nimmer, supra note 10, at 951, 976-80.
162. 17 U.S.C. §512(c)(1)(B).
163. The reference to the knowledge element is direct: An OSP can take advantage of the safe harbor for hosting copyright material only if it "does not have actual knowledge that the material or an activity using the material on the system or network is infringing." Id. § 512(c)(1)(A)(i). The reference to the latter element is more oblique: The entire safe harbor for hosting copyright material arises with respect to something tantamount to "materially contributes to the infringing conduct of another," namely, "the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." Id. §512(c)(1).
164. See id. §512. The closest that the statute comes is in its instructions to courts how to craft injunctions. The Online Copyright Infringement Liability Limitation Act (OCILLA) directs courts to consider "whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations."
165. Id. §512(j)(2)(C). But the very structure here shows how far afield of Sony this provision falls. Whereas under the Supreme Court's ruling, the defendant would prevail if it could demonstrate the existence of substantial noninfringing uses, under OCILLA's scheme, the defendant has already lost the liability phase of the case and is being enjoined; only in that context can it ask the court to mitigate the harshness of an injunction by balancing loss of access to noninfringing material when entering an injunction against continued availability of the infringing content.
166. 35 U.S.C. §271(c) (2000).
167. As classically stated by the Supreme Court in pre-Sony decisions: "Our objective in a case [turning on the interpretation of a statute] is to ascertain the congressional intent and give effect to the legislative will." Philbrook v. Glodgett, 421 U.S. 707, 713 (1975).
168. Where there is evidence that Congress "knew how to draft a[n]... exemption," one should not be read into a statute. City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338 (1994) (concluding that an express, codified household waste exception showed that the statute did not "extend the waste-stream exemption to the product of such a combined household/ nonhazardous-industrial treatment facility").
169. See, e.g., St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 784 n.14 (1981) ("Congress knew how to limit expressly an exemption to the place of employment or the type of work performed.");
170. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 20-21 (1979);
171. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734 (1975) ("When Congress wished to provide a remedy to those who neither purchase nor sell securities, it had little trouble in dolhg so expressly.");
172. FTC v. Fred Meyer, Inc., 390 U.S. 341, 356-57 (1968) ("[W]hen Congress wished to expand the meaning of competition to include more than resellers operating on the same functional level, it knew how to do so in unmistakable terms.");
173. Keifer & Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 395 (1939) ("To assume that Congress in subjecting these recently created governmental corporations to suit meant to enmesh them in these procedural entanglements, would do violence to Congressional purpose. When it chose to do so, Congress knew well enough how to restrict its consent to suits sounding only in contract, even with all the controversies in recondite procedural learning that this might entail. It did so with increasing particularity in the successive Court of Claims Acts.").
174. See Menell & Nimmer, supra note 10, at 980-82.
175. See supra Part II.A.
176. The same considerations apply to the later broadening of the ban on record rental to include barring computer software rental in 1990. See supra note 84. For, in like measure, one need only reflect that the store is capable of renting to people who wish to broaden their exposure to new applications by sampling a smorgasbord of unknown programs, in order to determine if they wished to purchase them.
177. See supra Part II.B.
178. To elaborate, some purchasers of, say, 2 Live Crew's 1990s prerecorded audio cassettes would, in a world of unencumbered DAT machines, run off multiple copies of them for the purpose of trading, selling, or otherwise. That activity could constitute copyright infringement. Yet, others, after purchasing a recording of "Nasty as They Wanna Be," might have no greater designs than to listen to the album not only on the car's cassette player, but also on the DAT machine in the bedroom. In this instance, the DAT technology shows itself to be capable of substantial noninfringing use. See RIAA v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999) (explaining that to "'space-shift' those files that already reside on a user's hard drive [constitutes] paradigmatic noncommercial personal use").
179. See supra Part U.C. 1.
180. See Nimmer, Riff, supra note 112, at 735-37. A provision of §1201 directs the U.S. Copyright Office to hold hearings to identify categories of works that, by duly promulgated regulations, will fall outside the anticircumvention framework. If Sally successfully petitions the Copyright Office to exempt works in category X by regulation published in the Code of Federal Register, then Sally can subsequently hack into X without liability. But if Sally is technically unable to accomplish what the law allows her, and therefore hires Harry to help her solely to undertake that permissible conduct, then Harry is culpable for violating the anticircumvention features.
181. Id.
182. See 17 U.S.C. §1201(a)(2) (2000) (including "any technology, product, service, device, component, or part thereof").
183. Id. §1201(a)(2)(A) (emphasis added). To express the matter with faux mathematical precision, a product could escape liability under Sony if only 10 percent of its capability were noninfringing.
184. See David Nimmer, A Tale of Two Treaties, 22 COLUM.-VLAJ.L & ARTS1, 18 (1997) (positing that a 10 percent noninfringing use is "commercially significant"). Yet, the DMCA, by adopting the language of "primarily ... produced," would hold that same product liable even if a full 49 percent of its capability were noninfringing. So, the DMCA is perhaps five times more restrictive than Sony.
185. One congressman remarked: "The original version of the [DMCA] threatened this standard, imposing liability on device manufacturers if the product is of limited commercial value.... I'm very pleased that the conferees have meaningfully clarified that the Sony decision remains valid law." 144 CONG. REC. 25, 812-13 (1998) (remarks of Rep. Klug).
186. Others expressed similar views on the House floor. See 144 CONG. REC. E2136 (Oct. 12, 1998) (remarks of Rep. Bliley). Bruce Lehman, Commissioner of Patents and Trademarks, had previously testified to Congress along the same lines.
187. See WIPO Copyright Treaties Implementation Act and Online Copyright Liability Limitations Act, Hearings on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual Property of the H. Comm. on the Judiciary, 105th Cong. 62 (1997) (statement of Bruce Lehman, Commissioner of Patents and Trademarks).
188. A different dynamic governs the core ruling whereby Sony validated analog recordings by VCRs of over-the-air broadcasts. Part of the DMCA enshrined that limited ruling into law. See17U.S.C.§ 1201(k)(1). For analysis, see 3 NIMMER &NIMMER, supra note 76, §12A.07[B].
189. 3 NIMMER & NIMMER, supra note 76, §12A.19[B] ("Much more basically, those who manufacture equipment and products generally can no longer gauge their conduct as permitted or forbidden by reference to the Sony doctrine. For a given piece of machinery might qualify as a staple item of commerce, with a substantial noninfringing use, and hence be immune from attack under Sony's construction of the Copyright Act-but nonetheless still be subject to suppression under Section 1201. It is in this sense that enactment of the Digital Millennium Copyright Act leaves Sony technically undisturbed, but still emptied of much of its force in this realm. Equipment manufacturers in the twenty-first century will need to vet their products for compliance with Section 1201 in order to avoid a circumvention claim, rather than under Sony to negate a copyright infringement claim." (footnotes omitted)).
190. See supra Part II.C.2.
191. Content owners may provide notice of infringing content, requiring the service provider to take down that content, unless the affected party provides a counternotification of noninfringement, thereby occasioning the provider's putting back the subject content. See 17 U.S.C. §§ 512(c)(3), 512(g) (2000).
192. See supra Part II.C.2.
193. See supra Part II.C.2.
194. See supra Part I.B.
195. See 545 U.S. 913 (2005);
196. infra Part III.B.3.
197. The fair use aspect of the Sony case has been cited in hundreds of cases. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-92 (1994);
198. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985);
199. Am. Geophysical Union v. Texaco, Inc., 37 F.3d 881, 916 (2d Cir. 1994)
200. amended and superseded by 60 F.3d 913 (2d Cir. 1994). It has also been the subject of extensive legal scholarship.
201. See, e.g., William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659 (1988);
202. Pierre N. Levai, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990);
203. Frank Pasquale, Breaking the Vicious Circularity: Sony's Contribution to the Fair Use Doctrine, 55 CASE W. RES. L. REV. 777 (2005);
204. Lloyd L. Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 HARV. L. REV. 1137 (1990).
205. 594 F. Supp. 335 (S.D.N.Y. 1984).
206. See RCA/Ariola Int'l, Inc. v. Thomas & Grayston Co., 845 F.2d 773 (8th Cir. 1988).
207. 847 F.2d 255 (5th Cir. 1988).
208. Id. at 262 (citing 17 U.S.C. § 117(2)).
209. Id. at 266 (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984)).
210. See supra Part II.C.1.
211. See 17 U.S.C. §§ 1201(a)(2), 1201(b)(1) (2000).
212. 902 F.2d 829 (11th Cir. 1990).
213. Id. at 846 n.30.
214. Id.
215. It arose indirectly, however, in Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (9th Cit. 1992). The Ninth Circuit there quoted Sony for the vague desideratum about protecting "society's competing interest in the free flow of ideas, information, and commerce."
216. Id. at 969. But, for analysis, this case actually relied on the pre-Sony case of Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009, 1013 (7th Cir. 1983).
217. 948 F. Supp. 1449 (C.D. Cal. 1996).
218. Id. at 1456-57.
219. 158 F.3d 693 (2d Cir. 1998)
220. cert. denied, 526 U.S. 1154 (1999). Disclosure should be made that one of the current co-authors represented Matthew Bender & Co. in that case.
221. Id. at 702-06.
222. Id. at 706-07. The court explained: West has a thin copyright in its compilations, which it seeks to leverage to protect its pagination (an element of its compilation that is unprotected altogether) and thereby to foreclose (or draw royalties from) CD-ROM products that might be used incidentally to replicate West's arrangement of cases, but that have substantial, predominant and noninfringing uses as tools for research and citation.
223. Id. at 707 (emphasis added).
224. Even after Napster was enjoined, "millions of people in the United States and around the world continue to share digital .mp3 files of copyrighted recordings using P2P computer programs such as KaZaA, Morpheus, Grokster, and eDonkey." RIAA v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1231 (D.C. Cir. 2003). One recording artist testified to Congress "that whether we like it or not, Napster has changed everything." Online Entertainment and Copyright Law: Coming Soon to a Digital Device Near You: Hearing Before the Committee on the Judiciary, 107th Cong. 14 (2001) (statement of Don Henley, Recording Artist, Cofounder, Recording Artists Coalition).
225. See A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 902 (N.D. Cal. 2000), aff'd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001) ("Approximately 10,000 music files are shared per second using Napster, and every second more than 100 users attempt to connect to the system.").
226. Id. at 927.
227. Id. at 1029 (affirming the determination of liability, and staying application of the preliminary injunction until modified by the district court). For a critique of the Ninth Circuit's analysis
228. see Nimmer, supra note 14, at 1355-62.
229. 177 F. Supp. 2d 1380 (J.P.M.L 2001).
230. In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003), cert. denied sub nom., Deep v. RIAA, 540 U.S. 1107 (2004).
231. 259 F. Supp. 2d 1029, 1046 (C.D. Cal. 2003), aff'd, 380 F.3d 1154 (9th Cir. 2004).
232. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
233. See A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000), aff'd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001).
234. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 438 (1984).
235. A&M Records, 114 F. Supp. 2d at 917.
236. Immediately after invoking "potential non-infringing uses of Napster," the court confined its attention to the present: "[T]he New Artist Program may not represent a substantial or commercially significant aspect of Napster." Id.
237. Id.
238. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1021.
239. Id. ("Consequently, the district court placed undue weight on the proportion of current infringing use as compared to current and future noninfringing use.").
240. Id. (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442-43 (1984) (emphasis added by Ninth Circuit)).
241. Id. at 1020.
242. Id. at 1020-21.
243. See supra Part III.A.
244. See Alec Klein, Going Napster One Better: Aimster Says Its File-Sharing Software Skirts Legal Quagmire, WASH. POST, Feb. 25, 2001, at Al.
245. In re Aimster Copyright Litig., 334 F.3d 643, 646 (7th Cir. 2003), cert. denied sub nom., Deep v. RIAA, 540 U.S. 1107 (2004).
246. See Wikipedia, Madster, http://en.wikipedia.org/wiki/Madster (last visited June 4, 2007) (chronicling Aimster's short, but dramatic, history).
247. In re Aimster, 334 F.3d at 648 (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)).
248. Id. at 652.
249. Id. at 653.
250. See Menell & Nimmer, supra note 10, at 984.
251. See id.
252. In re Aimster, 334 F.3d at 653.
253. Id. at 650.
254. Id. at 655.
255. See David P. Anderson & John Kubiatowicz, The Worldwide Computer, SCI. AM., Mar. 2002, at 40-47;
256. Napster Eclipsed by Newcomers, WIRED, Sept. 6, 2001, http://www.wired.com/techbiz/media/news/2001/09/46596.
257. See Brad King, While Napster Was Sleeping, WIRED, July 24, 2001, http://www.wired.com/gadgets/portablemusic/news/2001/07/45480;
258. Melanie Warner, The New Napsters, FORTUNE, Aug. 12, 2002, at 115, available at http://money.cnn.com/magazines/fortune/ fortune_archive/2002/08/12/327036/index.htm.
259. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029, 1036 (C.D. Cal. 2003), aff'd, 380 F.3d 1154 (9th Cir. 2004), vacated, 545 U.S. 913 (2005).
260. See Brad King, File Trading Sites in Crosshairs, WIRED, Oct. 3, 2001, http://www.wired.com/gadgets/portablemusic/news/ 2001/10/47296.
261. Grokster, 259 F. Supp. 2d at 1036-37.
262. Id. at 1046.
263. See supra Part III.A.
264. See supra Part III.A.
265. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 380 F.3d 1154 (9th Cir. 2004), vacated, 545 U.S. 913 (2005).
266. Id. at 1161.
267. Id. at 1163.
268. Id. at 1162 n.9.
269. id. at 1166.
270. See Peter S. Menell & David Nimmer, A Direct Analysis of Indirect Copyright Liability (or, How Grokster Should Have Come Out) (forthcoming).
271. In Sony, the Court imported 35 U.S.C. § 271(c). 464 U.S. 417, 435 (1984).
272. Two decades later, Grokster imported 35 U.S.C. § 271(b). 545 U.S. 913, 935 n.10 (2005).
273. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966 (C.D. Cal. 2006).
274. See Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F. Supp. 2d 607, 618 (S.D.N.Y. 2007) ("Cablevision's reliance on Sony is misguided. . . . [A]part from their time-shifting functions, the RS-DVR [Remote-Storage Digital Video Recorder] and the VCR have little in common, and the relationship between Cablevision and potential RS-DVR customers is significantly different from the relationship between Sony and VCR users.").
275. See supra Part II.C.2.
276. See supra Part III.B.
277. As noted above, see supra note 222, Grokster innovated by being the first decision to import 35 U.S.C. § 271(b) as the basis to construe the Copyright Act of 1976.
278. See supra text accompanying note 68.
279. See LARDNER, supra note 85, at 287.
280. Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979).
281. In 1984, cassettes surpassed albums as the preferred format of prerecorded music, accounting for over 55 percent of the industry's total revenues. See Is Horowitz, RIAA Figures: Cassettes Paced a Record '84, BILLBOARD, Apr. 13, 1985, at 1.
282. Video and Audio Home Taping: Hearing on S. 31 Before the Subcomm. on Patents, Copyrights and Trademarks of the S. Comm. on the Judiciary, 98th Cong. 232 (1983) (statement of Alan Greenspan).
283. See Jon Pareles, Royalties on Recorders and Blank Audio Tapes, N.Y. TIMES, Nov. 21, 1985, at C34.
284. Home Audio Recording Act: Hearings on S. 1739 Before the Subcomm. on Patents, Copyrights and Trademarks of the S. Comm. on the Judiciary, 99th Cong. 90 (1985) (statement of Stanley Gortikov, President, Recording Industry Association of America).
285. See supra Part II.A.
286. See supra Part II.B.
287. See supra note 25.
288. Richard Harrington, RIAA Moving to Washington, WASH. POST, Sept. 8, 1986, at C2.
289. Hans Fantel, Harmony Envelops the DAT, N.Y. TIMES, Aug. 6, 1989, at H26.
290. See John Burgess, Sony Sued Over Digital Recorders; Songwriter, Publishers Seek to Block Sales, WASH. POST, July 11, 1990, at B8.
291. No. 90 Civ. 4537 (S.D.N.Y. filed July 9, 1990).
292. See supra Part II.B.
293. See supra note 97.
294. See Otto Friedrich et al., The Computer Moves in, TIME, Jan. 3, 1983, at 14. For Time's 2006 "Person of the Year,"
295. see infra Part IV.C.7.
296. See Peter S. Menell, Envisioning Copyright Law's Digital Future, 46 N.Y.L. SCH. L. REV. 63, 108-18 (2002-2003).
297. In the sole case litigated under the AHRA, the Ninth Circuit commented: Until recently, the Internet was of little use for the distribution of music because the average music computer file was simply too big: the digital information on a single compact disc of music required hundreds of computer floppy discs to store, and downloading even a single song from the Internet took hours. However, various compression algorithms (which make an audio file "smaller" by limiting the audio bandwidth) now allow digital audio files to be transferred more quickly and stored more efficiently.
298. RIAA v. Diamond Multimedia Sys. Inc., 180 F.3d 1072, 1073-74 (9th Cir. 1999).
299. See Menell, supra note 245, at 108-18.
300. Yet, less than a decade earlier, the music industries declined to bring computers into the legislative negotiations over the AHRA. As a key legislator at the time noted, the AHRA excludes from coverage material objects in which computer programs are fixed, "except for certain specialized statements or instructions that may be contained in CD's, digital audio tapes, and similar objects covered by the legislation." 138 CONG. REC. S8422 (daily ed. Jun. 17, 1992) (statement of Sen. DeConcini).
301. See Amy Harmon, Piracy, or Innovation? It's Hollywood vs. High Tech, N.Y. TIMES, Mar. 14, 2002, at Cl;
302. cf. Jon Healey, Gateway Touts Online Music, L.A. TIMES, Mar. 27, 2003, at C6 (announcing Gateway's "RipBurnRespect" slogan, which promotes a more conciliatory message).
303. See Harmon, supra note 249.
304. At a time of prickly relations between Disney's Michael Eisnet and Pixar's Steve Jobs, the former had threatened to retaliate against Apple Computer Corporation - also helmed by Jobs-over its "Rip, Mix, Burn" campaign. See Richard Verrier & Claudia Eller, A Clash of CEO Egos Gets Blame in Disney-Pixar Split; Eisner and Jobs Had Personal Differences That Affected Their Business Relationship, Sources Say, L.A. TIMES, Feb. 2, 2004, at Al. But the contretemps blew over, and Disney ultimately acquired Pixar.
305. See Laura M. Holson, Disney Agrees to Acquire Pixar in a $7.4 Billion Deal, N.Y. TIMES, Jan. 25, 2006, at C1.
306. See Jon Healey, Labels Think Apple Has Perfect Pitch, L.A. TIMES, Mar. 4, 2003, at C1.
307. See RIAA v. Diamond Multimedia Sys., Inc., 29 F. Supp. 2d 624 (C.D. Cal. 1998), aff'd on other grounds, 180 F.3d 1072 (9th Cir. 1999).
308. Diamond Multimedia, 180 F.3d at 1079.
309. Id. at 1078.
310. See Family Entertainment and Copyright Act of 2005, Pub. L. 109-9, 119 Stat. 218. For an analysis
311. see 4 NIMMER & NIMMER, supra note 76, § 15.06[A].
312. See Lawrence J. Magid, Rewind, Replay and Unwind With These New High-Tech TV Devices, LA. TIMES, May 10, 1999, at C6.
313. See Ashley Dunn, TiVo Woos TV's Big Players With Its Set-Top Box; Technology: Investments Come Despite the Threat to Conventional Advertising Posed by Its Digital Recording Device, L.A. TIMES, July 28, 1999, at C1;
314. Michael A. Hiltzik, NBC Allies With Firm That Challenges TV Traditions, L.A. TIMES, Jun. 9, 1999, at Al. TiVo is seeking to implement digital rights management technology to limit the duration that programming can be stored so as to prevent accumulation of large digital libtaries by users.
315. See Dan Tynan, Winners and Losers 2005, PC WORLD, Dec. 27, 2005, available at http://www.pcworld.com/news/article/0,aid, 123923,00.asp.
316. But consider content owners' vigorous response when TiVo began developing technology to enable sharing over the Internet similar to ReplayTV. See CTR. FOR DEMOCRACY & TECH., ALL EYES ON TIVO: THE BROADCAST FLAG AND THE INTERNET (2004), http://www.cdt.org/copyright/20040928tivo-reply.pdf. The Federal Communications Commission ultimately approved the TiVoGuard Digital Output Protection Technology system.
317. See Press Release, FCC, FCC Approves Digital Output Protection Technologies and Recording Method Certifications (Aug. 4, 2004), available at http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-250532A1.doc.
318. Fred von Lohmann, ReplayTV Zaps Ads and Permits Show Swapping; Get Ready for the Next Big Copyright Battle, CAL. LAW., June 2002, at 30. The website for ReplayTV 5000 stated: '"You can now choose to playback your recorded shows without the commercials using Commercial Advance . . . . Under controlled test conditions with major network daytime and prime time broadcasts, approximately 96% [of] intraprogram commercials are eliminated."'
319. Matthew Scherb, Comment, Free Content's Future: Advertising, Technology, and Copyright, 98 NW. U. L. REV. 1787, 1814 n.193, 1815 (2004) (quoting ReplayTV 5000 Features and Benefits, http://www.digitalnetworksna.com/video/Replaytv5000/Replaytv_5000_features.asp (last visited Apr. 7, 2004)).
320. See Doug Isenberg, ReplayTV Lawsuit: Napster Redux?, CNET NEWS.COM, NOV. 12, 2001, http://news.com.com/2010-1079-281601. html.
321. See Jon Healey, Sonicblue Files for Chapter 11 ; The ReplayTV Maker, Which Has Been Sued by Copyright Holders, Says Debt Hurt the Company, L.A. TIMES, Mar. 22, 2003, at C1.
322. Eric A. Taub, Replay TV's New Owners Drop Features That Riled Hollywood, N.Y. TIMES, July 21, 2003, at C3. A suit brought by ReplayTV users was dismissed a year later on the grounds that ReplayTV had dropped the feature that was being tested in the lawsuit.
323. See Paramount Pictures Corp. v. ReplayTV, 298 F. Supp. 2d 921 (C.D. Cal. 2004);
324. ReplayTV Users' Lawsuit Is Dismissed, LA. TIMES, Jan. 13, 2004, at C2.
325. See, e.g., Aaron A. Hurowitz, Copyright in the New Millennium: Is the Case Against ReplayTV a New Betamax for the Digital Age?, 1 COMMLAW CONSPECTUS 145 (2003);
326. Ethan O. Notkin, Television Remixed: The Controversy Over Commercial-Skipping, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 899 (2006);
327. Randal C. Picker, The Digital Video Recorder: Unbundling Advertising and Content, 71 U. CHI. L. REV. 205 (2004).
328. See supra note 260 ("[Approximately 96% [of] intraprogram commercials are eliminated.").
329. Surveys indicate that most DVR users skip a high percentage of commercials. See Benny Evangelista, Fast Forward to VCR's Future: Digital Recording Devices Threaten Its Reign, S.F. CHRON., Apr. 22, 2002, at El, available at http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2002/04/ 22/BU15029.DTL (reporting a survey of DVRs users finding that 35 percent never watch commercials and that 60 percent watch them only occasionally). And unlike commercial skipping with older analog devices - which required some attention to what was being broadcast-DVRs can accomplish skipping without a glance.
330. The opinion recounts the status of technology as reflected in the record: The pause button, when depressed, deactivates the recorder until it is released, thus enabling a viewer to omit a commercial advertisement from the recording, provided, of course, that the viewer is present when the program is recorded. The fast-forward control enables the viewer of a previously recorded program to run the tape rapidly when a segment he or she does not desire to see is being played back on the television screen.
331. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 423 (1984). The opinion likewise quotes the district court's ruling: "It must be remembered, however, that to omit commercials, Betamax owners must view the program, including the commercials, while recording. To avoid commercials during playback, the viewer must fast-forward and, for the most part, guess as to when the commercial has passed. For most recordings, either practice may be too tedious. As defendants' survey showed, 92% of the programs were recorded with commercials and only 25% of the owners fast-forward through them. Advertisers will have to make the same kinds of judgments they do now about whether persons viewing televised programs actually watch the advertisements which interrupt them."
332. Id. at 452 n.36 (quoting Universal City Studios, Inc. v. Sony Corp. of Am., 480 F. Supp. 429, 468 (1979)).
333. After Jonathan Tasini prevailed in the Supreme Court, establishing that the New York Times infringed his copyright when it copied his works and those of his fellow freelancers, he subsequently filed suit against the New York Times for failing to copy such articles! The Court had little difficulty dismissing such an outré claim. See N.Y. Times Co. v. Tasini, 533 U.S. 483 (2001);
334. see also Tasini v. N.Y. Times Co., 184 F. Supp. 2d 350, 353 (S.D.N.Y. 2002).
335. By contrast, a tort framework avoids this conundrum. We have previously confronted the possibility of copying program broadcasts only without their attendant commercials, concluding that Sony could not be liable as of 1984 for its failure to disable commercial squelching. SEE Menell & Nimmer, supra note 10, at 1019. Yet, to the extent that ReplayTV affirmatively decided in the 2000s to enable commercial skipping, tort law would have to confront afresh, based on technology then extant, whether it should be held liable.
336. See id.
337. See supra Part II.C.1.
338. See, e.g., 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal. 2004) (software for decrypting DVDs);
339. United States v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002) (software decrypting eBook reader);
340. Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 310 (S.D.N.Y. 2000), aff'd sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) (software for decrypting DVDs);
341. RealNetworks, Inc. v. Streambox, Inc., No. 2:99CV02070, 2000 WL 127311 (W.D. Wash. Jan. 18, 2000) (product decrypting streaming technology).
342. See supra Part III.B.
343. See lonelygirl15, http://en.wikipedia.org/wiki/Lonelygirl15 (last visited Aug. 5, 2007).
344. Virginia Heffernan & Tom Zeller, Jr., Well, It Turns Out That Lonelygirl Really Wasn't, N.Y. TIMES, Sept. 13, 2006, at C1.
345. The implications reach vastly greater than copyright; perhaps they go right to the core of political accountability. As noted by the Libyan-born former minister of trade for Venezuela: A VIDEO SHOWS a line of people trudging up a snow-covered footpath. A shot is heard; the first person in line falls. A voice-over says, "They are killing them like dogs." Another shot, and another body drops to the ground. A Chinese soldier fires his rifle again. Then a group of soldiers examines the bodies. These images were captured in the Himalayas by a member of a mountaineering expedition who claims to have stumbled on the killing. The video first aired on Romanian television, but it only gained worldwide attention when it was posted on YouTube, the video-sharing website. Moisés Naím, The YouTube Effect, L.A. TIMES, Dec. 20, 2006, at A31.
346. For a fabulous account of the new technologies and their antecedents in Andy Warhol and Marshall McLuhan, see RICHARD A. LANHAM, THE ECONOMICS OF ATTENTION (2006).
347. See http://www.youtube.com/results?search_query= lonelygirl15&search=Search (last visited Dec. 29, 2006).
348. Phil Kloer, You Beaut, YouTube, AGE (Australia), Dec. 26, 2006, available at http://www.theage.com/au/news/biztech/you-beaut-YouTube/ 2006/12/22/1166895269590.html. The variety is seemingly infinite: In recent days I've seen Ella Fitzgerald in 1957, at her peak, singing Angel Eyes in Amsterdam; the Penguin Cafe Orchestra on Britain's South Bank Show;
349. Bob Dylan sound-checking for his 1984 Letterman appearance backed by members of the Plugz; Fela Kuti jamming with Ian Anderson and Jack Bruce on German TV in 1983; the Stooges in 1970; Funkadelic in 1979; Conway Twitty and Loretta Lynn singing Easy Loving; the prelapsarian Mothers of Invention performing King Kong; pre-paralyzed Robert Wyatt in the Soft Machine; the KLF on Top of the Pops with Tammy Wynette; Liberace playing Flight of the Bumblebee .
350. . . . Robert Lloyd, YouTube Is Trip Down the Rabbit Hole, RECORD (Ontario), Dec. 27, 2006, at D6.
351. Lev Grossman, Time Person of the Year: You, TIME, Dec. 25, 2006, at 38. The article stated: Who actually sits down after a long day at work and says, I'm not going to watch 'Lost' tonight. I'm going to turn on my computer and make a movie starring my pet iguana? I'm going to mash up 50 Cent's vocals with Queen's instrumentals? I'm going to blog about my state of mind or the state of the union or the steak-frites at the new bistro down the street? Who has that time and that energy and that passion? The answer is, you do. And for seizing the reins of the global media, for founding and framing the new digital democracy, for working for nothing and beating the pros at their own game, Time's Person of the Year for 2006 is you.
352. Id.;
353. see George F. Will, Full Esteem Ahead, WASH. POST, Dec. 21, 2006, at A29 ("Narcissism is news? Evidently.").
354. See 17 U.S.C. § 106(2) (2000 & Supp. IV 2004).
355. That bootleg violates 17 U.S.C. § 1101 (2000). To the extent that the artist was singing a previously recorded (or transcribed) song, it likewise violates 17 U.S.C. § 501 (2000 & Supp. II 2002).
356. See supra Parts III.B.1-III.B.2.
357. See Noam Cohen, YouTube Is Purging Copyrighted Clips, N.Y. TIMES, Oct. 30, 2006, at C8.
358. Id.
359. YouTube 'Should Check Copyright,' BBC NEWS, Dec. 5, 2006, http://news.bbc.co.uk/1/hi/technology/6209414.stm.
360. AP Wire, Google Retains Part of YouTube Payout, L.A. TIMES, Nov. 15, 2006, at C2;
361. see id. ("The reserve could signal that Google is trying to insulate itself from a possible onslaught of lawsuits aimed at the large number of pirated videos posted on YouTube . . . .").
362. See Steve Johnson, You May Have Shone in '06, but Your Net Worth Didn't Rise, CHI. TRIE., Dec. 29, 2006, at 2. New media pose new possibilities: NBC used YouTube, nimbly, to dance around censors. Its year-end "Saturday Night Live" video, a song about an explicit Christmas present, aired on the network with the song's key word, a vulgarism for a male anatomical feature, bleeped out. But the network posted it, uncensored, on NBC.com and YouTube right away, and that version (search "special Christmas box") became among the most discussed and rapidly circulated viral videos since last year's "SNL" classic, the rap parody "Lazy Sunday." It was the buzz over "Lazy Sunday," not coincidentally, that took YouTube from fringe to mainstream, Internet audience measurement executives have said. Then, NBC quickly asked YouTube to take the video down, restricting its availability to the network's own site, the one it draws ad revenue from. Now NBC works with YouTube as a virtual bulletin board. This change took less than a year.
363. Id.
364. Jeff Leeds, Universal Music Sues MySpace for Copyright Infringement, N.Y. TIMES, Nov. 18, 2006, at C3. That suit follows on the heels of Universal's copyright infringement suits against Grouper Networks and against Bolt.
365. Id. (Disclosure: Counsel for Universal Music Group is Irell & Manella LLP, to which one of the current authors is of counsel.)
366. Id.
367. Id.
368. In addition, Robert Tur, who made copyright doctrine in the past pursuing networks for rebroadcasting his video footage of the beating of Reginald Denny in the 1992 Los Angeles riots, see L.A. News Serv. v. Tullo, 973 F.2d 791 (9th Cir. 1992), more recently has filed suit against YouTube, alleging 5500 unauthorized accesses to the footage of that same beating
369. see Complaint para. 12, Robert Tur v. YouTube, Inc., No. CV06-4436 (C.D. Cal. July 14, 2006), available at http://pub.bna.com/eclr/064436. pdf.
370. See Miguel Helft & Geraldine Fabrikant, Viacom Sues Google Over Video Clips on Its Sharing Web Site, N.Y. TIMES, Mar. 14, 2007, at C1.
371. See Kevin J. Delaney et al., Policing Web Video With 'Fingerprints' - Sharing Sites Say Technology Could Help Them Identify, Remove Unauthorized Clips, WALL ST. J., Apr. 22, 2007, at B1.
372. Cf. Litman, supra note 5, at 956-57 (suggesting that the Sony third-party liability safe harbor has proven to be far from clear in practice).
373. See supra Part I.B.
374. See supra Parts III.B.1-III.B.2.
375. As will be explored more fully in the final installment in this series, an additional possibility is liability on a theory of inducing copyright infringement. See Menell & Nimmer, supra note 221.
376. See supra Part IV.C.2.
377. For copyright owners, that posture is less than satisfactory, as the takedown notices mandated by OCILLA lead to a "whack-a-mole situation," such that when the proprietor "demands that the site's administrators remove a video, users can simply upload the file again." Andy Greenberg, YouTube's Doppelganger, FORBES, Nov. 29, 2006, available at http://www.forbes.com/technology/2006/11/28/piracy-networks- copyright-tech_cx_ag_1129video.html.
378. See supra Part IV.C.7.
379. See id.
380. See id.
381. In addition, the companies, of course, will vigorously assert the safe harbor that the DMCA added to the Copyright Act in OCILLA. See 17 U.S.C. § 512 (2000);
382. Natali T. Del Conte, Will Google Pay for YouTube Infringements?, PC MAG., Oct. 10, 2006, available at http://www.pcmag.com/ article2/0,1895,2027482,00.asp. At play here, however, is a double-edged sword: "The problem is that the more they go into editorial control, the less they can rely on the DMCA to protect them," said Randy Broberg, head of the intellectual property practice group at Allen Matkins LLP. "If you exercise editorial censorship, it becomes YouTube's content, which would make them more liable."
383. Del Conte, supra.
384. See supra Part I.C.
385. See supra Part I.B.