Christian Turner Assistant Professor of Law

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Answers
Problem: Streamers

3.4.4.1. Problems

Problems

For each, state the possible theories of secondary liability for infringement that could be used, if any, based only on the facts given. (inducement, vicarious, or Sony-style)

1. A newspaper contains a classified ad section, a small subsection of which frequently features solicitations to trade copies of copyrighted compact discs. Newspaper is sued.

2. A developer sells software called StripIt that removes the restrictions on movies purchased from the iTunes Store. Developer is sued.

3. A developer sells software that records in an audio file all audio output by one’s computer. A web designer creates a popular, ad-supported website featuring how-to guides on using the software to record internet radio broadcasts, some of which are copyrighted and do not authorize duplication. Developer is sued.

4. Same as 3, but web designer is sued.

Answers

1. A newspaper contains a classified ad section, a small subsection of which frequently features solicitations to trade copies of copyrighted compact discs. Newspaper is sued.

Vicarious liability is the most promising avenue. Vicarious liability, in the copyright infringement context, is liability for the infringement of others when one has the right and practical ability to control that infringement. Here, the newspaper has the right to decide which ads to print. Further, the newspaper is certainly capable of screening ads for solicitations to trade infringing copies. This case would essentially be a low-tech version of Napster, but where the ability to screen for infringers is even easier.

Note that solicitations to trade the compact discs themselves, the actual discs bought at retail, would not form the basis of a secondary infringement claim. There would be no copy at all made in such circumstances. I’m free to sell or give away books I no longer want, CDs that I don’t want, or any other article subject to copyright.

You may be tempted to cite inducement as a possibility here. But the newspaper itself is not actively encouraging anyone to infringe. The evidence of inducement in Grokster went to evidence that the companies themselves were encouraging infringement - by marketing to infringers, advertising the utility of their produce to infringe, etc. There isn’t any of that here.

2. A developer sells software called StripIt that removes the restrictions on movies purchased from the iTunes Store. Developer is sued.

Contributory infringement, or what I’ve been calling Sony-style infringement, might be found here, depending on what other uses the software has. Cautionary note: there was no liability in Sony. So when I say Sony-style liability, I mean liability on the ground discussed in Sony. Sony itself was not found liable under what we’re calling a Sony theory. Contributory infringement is liability for merely placing a product on the market that is not capable substantial noninfringing uses. In other words, if your product is really only good for infringement, you can be liable for the illegal copying of those who use it.

Here, StripIt appears to be useful only to remove the protections that prevent unauthorized copying of digital movies purchased from iTunes. We’d want to know, though, whether it’s capable of other uses. Further, we’d want to know how often the product is used to enable users to make fair use copies of movies they have bought. (There is another statute, the controversial DMCA, that governs the intentional circumvention of anti-copying measures.)

No liability. There is no evidence here that the developer has done anything to encourage anyone to use the product to make illegal copies. It’s doubtful therefore that there could be liability under an inducement theory. Nor is vicarious liability a realistic possibility. The courts aren’t going to require the developer to change the program to monitor people’s usage and route that information back to the developer. The developer simply doesn’t have the practical ability to control how the product is used once people download it. Finally, there almost certainly is no liability under a Sony theory. There are a great many uses for such a product that do not include copying copyrighted material. Indeed, web designer’s guides include information on recording noncopyrighted streams. So even if we restrict attention to copying streams, it would seem the product is capable of substantial noninfringing uses. This is not to mention the other kinds of recordings a user could make.

4. Same as 3, but web designer is sued.

The most promising ground here is inducement. Web designer hasn’t released a product that makes copies. Rather, the designer has encouraged others to make copies by telling the how to do it. That some of the guides aren’t for copyrighted streams doesn’t matter. Even if there is only one guide that instructs users on recording a copyrighted stream, designer might be held liable under an inducement theory - as the designer might be argued to have actively encouraged the guide’s readers to do what’s in the guide: copy a copyrighted stream.

Problem: Streamers

Lenny the law student is pretty good with computers. While task avoiding, Lenny developed an application for recording streamed audio from the internet. Called Streamers, the program works as follows. It assumes the user has certain software, not made by Lenny, already installed, namely a web browser, a calendar program, RealPlayer (for playing streamed audio), and a program called WireTap. WireTap, made by another software company, records any sounds output by the computer. So, after hitting record in WireTap and listening or watching a stream on RealPlayer, the audio file created by WireTap will contain the audio of that stream (along with any other sounds the user happens to trigger when WireTap is recording). Because the raw sound is recorded and then re-compressed, the resulting audio file typically is a little lower quality than the original stream.

Streamers works by coordinating these four applications. After typing into Streamers a URL and a recording schedule, the application puts the recordings into the user’s calendar with an alarm. When the time for a recording arrives, the alarm is triggered, and Streamers launches the web browser, triggering the desired stream to play, and then launches WireTap to begin recording. When the stream is finished, recording ends, and Streamers conveniently moves the resulting audio file into iTunes where it is ready for the user to listen to or put on an iPod. In this way, a user can develop a whole library of streams and schedules so that with no manual effort on the part of the user, he or she will always have a library of his or her favorite streams.

To Lenny’s surprise, shortly after posting his application, thousands of people downloaded it and began using it to keep up-to-date libraries of their favorite NPR and commercial radio shows, making use of the online streams many radio stations provide. Though they already could have listened to these while sitting at their computers, many were eager to get these programs onto their iPods or other portable players. A good many users had questions, and Lenny provided help over email for configuring Streamers to record various radio programs hosted on numerous websites.

Lenny comes to you, a well-known lawyer, with an email he has just received from VapidChannel Communications. The email demands Lenny remove Streamers from distribution and destroy all copies of the application and its source code. According to Vapid, Lenny has “promoted, encouraged, and enabled the illegal copying of Vapid’s copyright protected programs.” The email went on, “If you do not comply with Our demands within ten days, Vapid will be forced to file suit against You for copyright infringement and seek injunction and damages in an amount up to $300,000 per illegal copy.”

The letter further states that “Your application, Streamers, places you in violation of the anti-circumvention provision of the Digital Millenium Copyright Act, 17 U.S.C. § 1201, as it enables unauthorized copies of audio streams that have been effectively protected against being downloaded.”

Lenny is scared, makes nothing for Streamers, which is a free download, but does not want to be intimidated. What can you tell Lenny about his potential liability and what evidence, if any, might be relevant to the case?

Discussion

This problem obviously calls for an application and extension of the ideas in Grokster and Sony. L is not being threatened for making any copies of Vapid’s copyrighted programs. Rather, Vapid’s theory must be that he is liable for the illegal copying by others using his program, Streamers. Called “contributory infringement,” this basis for liability is not found in the Copyright Act itself but is a judicial doctrine meant to effectuate the Act’s purposes.

We have identified three possible circumstances under which one may be liable for the infringing acts of another. First, vicarious liability (think Napster) may be found where one has the ability and right to control the infringing acts of third parties but does not do so. Second, liability for inducement (think Grokster) attaches when one “distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.” Third, mere distribution, with no such expression or affirmative steps, may constitute contributory infringement if the device is not capable of significant noninfringing use.

A good answer here would run through these three possibilities. There’s clearly no control as there was in Napster, and so vicarious liability seems exceedingly unlikely. Inducement? Well, the facts did state that L provided some assistance to users seeking to record shows. It is not clear whether and to what extent L helped in the copying of copyrighted material. The problem asked what evidence might be relevant to the case, and the content of L’s customer support is likely important. If it can be shown that L provided no help toward what he knew to be infringing uses, then L can likely avoid an inducement claim, and he won’t have to defend the legality of the acts of any particular users he helped.

What about the third possibility (Sony)? Regardless of the support he provided or steps he took, could L be liable simply because of the infringement that Streamers makes possible? The question here would center on how much non-infringing use Streamers either permits or, if Ginsburg’s analysis rules the day, is likely actually to occur. L’s lawyer would clearly want to establish the large number of potential noninfringing uses that could be made of Streamers. Think about the different kinds of evidence we could consider. The abundance of streams that do no forbid copying of this sort? Just because there may be many such streams does not mean that their copying is a substantial part of the copying Streamers users actually engage in. Maybe the other side will gather evidence concerning the proportion of Streamers-made copies that are authorized. (Remember in discussing Grokster when we asked whether the percentage of noncopyrighted files or copies was the relevant benchmark for the Sony “significant” benchmark.)

But even if Vapid can show that the vast majority of Streamers-made copies are of non-authorized streams, meaning streams that the content owners would not allow to be copied, the analysis would not stop there. Just because a content owner does not authorize a copy does not mean that he or she has a valid legal claim against the copier. If the content is not copyrighted to begin with or if the copying is fair use, then there can be no infringement, and, thus, such copies cannot establish contributory infringement.

Remember that one need not register a work to gain a copyright. Your blog postings, etc., those can all be subject to copyright protection. Indeed, nearly all of the streams that Streamers users copy are likely subject to copyright. And so, unless the owners of those streams authorize copying, we have prima facie infringement. Exactly how many streams authorize such copying is something we’d have to investigate. But as to the unauthorized streams: is copying them with Streamers fair use if done (a) only to time shift or (b) to time shift and “device shift” (i.e., put the content on an iPod even when the content owner wants me to pay to do so)?

A very good answer here would discuss the fair use statute (looking to opinions interpreting it, like Suntrust Bank, for guidance) and examine its factors. Sony, though, tells us how these factors resolve with respect to television time-shifting, and it’s clearly relevant to, if not dispositive of, the copying here. Though the fair use factors appear both here and in Sony, on their surface, pretty heavily to favor the broadcasters, the fact in Sony that a user of a VCR is only shifting to a more convenient time the viewing of a program he or she was invited to view free of charge pretty much overwhelmed the analysis. The Court just didn’t see anything wrong with that kind of copying in light of the purposes of copyright, and the statutory factors that pointed the other way were deemed less important in this context.

At first glance, one might think that Sony definitively answers the question here with regard to time shifting. However, Vapid could argue that time shifting is not fair use in this context, at least with respect to streams which are available on demand on the internet. Unlike television broadcasting in the early 1980s, streams can be listened to anytime one is sitting at the computer with the necessary software. Time shifting is simply not as valuable or necessary here as it is to VCR users. What Streamers users are really doing, Vapid will argue, is “space shifting” or copying in order to convert the stream into a more versatile form that can be consumed in settings other than those for which the stream was designed (sitting in front of the computer scenarios). Vapid will assert that it can afford to put its content in free streams only because doing so drives traffic to its profit-generating businesses like commercial radio and paid downloads. Space shifting directly compromises those revenues.

A really great answer on this point would step through the fair use factors with respect to space shifting, compare it with the time shifting analysis as we understand it from Sony, and then situate that analysis within the broader purposes of the Copyright Act. The few decisions that have dealt with this issue have been inconsistent. This is the most important issue, setting the DMCA provision aside for a moment, in this case. If space shifting is infringement, then we’ll have a very hard time defending Streamers.

Ok, on to the DMCA. The provision cited in the letter is the so-called anti-circumvention provision. It prohibits the circumventing of “technological measures” intended to prevent copying of copyrighted works. Further, it prohibits distribution of devices or services that (1) are designed primarily to accomplish such circumvention, (2) have only limited other uses, or (3) are promoted as enabling circumvention. What’s troublesome is that this provision would seem to prohibit one from making a fair use copy if doing so requires getting around some protective measure. For example, suppose I wanted to make what is concededly a fair use copy of a DRM-protected iTunes Store purchase. Under the DMCA, I’m prohibited from making a copy by circumventing the DRM, even though under copyright law, I’m permitted to make a copy. And here, even if we conclude, per the above, that time and space shifting are fair uses of these streams, getting around a technological measure meant to prevent copying might still be a DMCA violation - even though it’s not a copyright violation.

This might go too far. After all, if the law gives the power to content producers to disable fair uses through legally protected (even if technically flawed) technological means, then fair use is a dead letter. And fair use was supposed to be a critical part of the great First Amendment - Copyright balance.

So what would an answer look like here? Well, I’d want you to start with the text of the statute. Does Streamers violate its terms? Does it circumvent by disabling the protections inherent in non-saveable streams or does it make use of something more like the analog hole? See here, e.g.: http://volokh.com/posts/1176397745.shtml Does your conclusion depend on your interpretation of the text? Which of those interpretations are sensible? Are the harshest interpretations unconstitutional?

The DMCA portion of this question was meant to expose you to this very tricky area of law and would not have been at all fair on a real test. But I do hope that you’ll give it some thought. Interesting trivia: as a law student I wrote an app called Streamers that works exactly as described in this problem.

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