Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

Are the Copyright Laws Out of Sync with Technology? A Guest Post by Alex “A-Rex” Nguyen

The following is a guest blog written by one of my IP Survey students, Alex “A-Rex” Nguyen. The background on this is Alex had to miss one of our a classes, and asked what he could do as “make up.” I suggested writing a guest blog post on the copyright topic we were to discuss. Here, unedited, is Alex’s guest blog:

There’s no doubt we’ve made revolutionary technological advances in the past couple decades. The leaps and strides in technological progress has exponentiated access to information on a global scale. Today, anyone with a smart phone and a mobile broadband package has a database of infinite knowledge within the palm of their hands. . . literally. However, an inverse correlation exists between technological advancement and the ability for copyright law to protect intellectual property owners. The greater technology grows, the less copyright laws are able to adequately protect copyright owners against infringement.

The ultimate purpose of copyright law is to “ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) Congressional copyright legislation seeks to strike a “difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand, our patent and copyright statutes have been amended repeatedly.” Id.

With technology constantly developing, the free flow of information and the public availability of artistic works also continues to expand. Public access to information is currently at its pinnacle and continues to reach new peaks. However, unhindered and open access to information comes at a cost – to which copyright owners must bear. Technologies such as third party video hosting websites, which arguably “promote broad public availability” of artistic works, ultimately derogate “the immediate effect of copyright law . . . to secure a fair return for an [artist’s] creative labor.” Id. at 432. Gabriel J. Michael describes these technologies as “disruptive technologies” in his academic article, Anarchy and Property Rights in the Virtual World.

Disruptive technologies conduce insecurity in an artist’s capacity to procure a just financial reward. In theory, these technologies are “capable of commercially significant noninfringing uses.” Id. at 443. However, in reality, these technologies are actually “good for nothing else but infringement.” MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 932 (2005). An incalculable number of consumers, all over the world, use these technologies for the sole purpose of infringement.

So what can copyright owners do to fend off the widespread onslaught of disruptive technology-based infringing activities? [pause for dramatic effect] That’s right – sue.

But wait – waging an all-out Salem reminiscent witch hunt against consumer-infringers is nonsensical because individual consumer-infringers are virtually judgment proof, most of whom lack the financial means to foot the bill arising from copyright infringement litigation. Since litigating against individual consumer-infringers is neither worth the time nor expense, are copyright owners SOL? Not if copyright owners go after the providers of the disruptive technology (i.e. the means used to infringe) under the judicial doctrine of secondary liability.

Secondary liability comes in two forms: (1) contributory liability and (2) vicarious liability. Contributory infringement involves intentionally inducing or encouraging direct infringement. Id. at 930. Vicarious infringement involves profiting from direct infringement while declining to exercise a right to stop or limit infringement. Id.

Disruptive technology providers can be pegged as either contributory or vicarious infringers. Disruptive technology providers can induce or encourage direct infringement with relative ease, like bombarding an unsuspected internet patron with a bunch of surreptitiously placed and strategically timed pop-up advertisements reading “CLICK HERE TO DOWNLOAD AND/OR STREAM [enter favorite celebrity sex tape copyrighted work here] FREE NOW.” Who wouldn’t click on that? Although the world economy is currently in a state of recovery, I’m unaware of many consumers who’d pass up an opportunity for the quasi-proverbial “free lunch.” Such an overt act of advertising in an effort to induce or encourage internet patrons to infringe warrants finding liability under the doctrine of contributory infringement.

Further, disruptive technology providers can effortlessly profit from direct infringement while declining to exercise a right to stop or limit infringement. For instance, third party video streaming websites offer soon-to-be-consumer-infringers the option to pay a subscription fee for ridiculously fast video streaming. Third party streaming websites can also passively profit merely by selling ad space to other not-so-reputable businesses, in the event individual consumer-infringers choose to forego lightning fast video streaming for a choppier video streaming experience. Moreover, despite such rampant ongoing infringement, these websites do little to limit direct infringement by consumers. Taking down one copyrighted work upon request does not change the fact that voluminous copies of that exact same copyrighted work remains fully functional elsewhere on the same website. Effective pre-trial discovery would reveal “evidence [that] goes beyond [the website’s] characteristics or the knowledge that it may be put to infringing uses” to support vicarious liability. See Id. at 937.

Although at first glance the doctrine of secondary liability appears to be an adequate legal measure to protect copyright owners from infringement, most disruptive technology providers operate outside the U.S., which diminishes the secondary liability doctrine’s impact in curbing infringement. The U.S. copyright laws are not so far-reaching as to extend beyond the U.S. border.

Despite the inefficacy of U.S. copyright laws to combat ongoing infringement occurring off American soil, all hope is not lost. The solution need not lie in law. Creators themselves can effectively defend against copyright infringement by producing innovative products and services that not only compensate copyright owners for their work but also provide additional value to consumers. Amazon.com’s Amazon Prime Paid Membership Service is a prime (no pun intended) example. Amazon Prime subscribers pay a fee and receive free 2-day shipping a whole slew of items as well as unlimited streaming of tens of thousands of movies & TV episodes. To top that off, Amazon Prime subscribers also have access to a library of 350,000 Kindle titles. And, in turn, copyright owners get paid for licensing their creative works to Amazon.com.

Providing additional value to consumers through innovative products and services: (1) incentivizes consumers to pay to enjoy copyrighted works; (2) ensures copyright owners get paid for their creative endeavors, (3) facilitates public availability of artistic works and (4) promotes further technological advancement. In sum, everybody’s left satisfied.

[Thanks, A-Rex!]

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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