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Hands off my iPod: Copyright Law, and Consumer Rights in the Digital Millennium. Matthew Rimmer. Senior Lecturer, ACIPA, The Faculty of Law, The Australian National University Canberra ACT 0200 Telephone Number: 61254164 E-mail: Matthew.Rimmer@anu.edu.au. I. Introduction.
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Hands off my iPod:Copyright Law, and Consumer Rights in the Digital Millennium
Matthew Rimmer Senior Lecturer, ACIPA, The Faculty of Law, The Australian National University Canberra ACT 0200 Telephone Number: 61254164 E-mail: Matthew.Rimmer@anu.edu.au
Matthew Rimmer • "In the case of Sony against Universal Studios... the Supreme Court of the United States held that it was a fair use to engage in time shifting. That would essentially mean that a consumer in the United States could make a copy of a show while they were out and then watch that when they came home, and they would not be breaching copyright. It seems ludicrous to me that engaging in that activity in Australia, such as copying Queer Eye for the Straight Guy and then coming back later in the day and watching that, would amount to copyright infringement.”
“Fair Use is a local ordinance in a global economy” Rosemary Coombe
Structure • I. Introduction • II. Time-Shifting • III. Space-Shifting • IV. File-Sharing • V. Place-Shifting
Gary Shapiro • The significance of the Supreme Court's decision, twenty years ago, cannot be overstated. For consumer electronics and consumer freedom, it is the Magna Carta and the Declaration of Independence rolled into one. But increasingly, major entertainment interests are arguing that the Betamax doctrine does not apply in the digital age. Without this doctrine's protection, the big motion picture studios and others would exercise a veto over every new function of every new product.
Sony Corporation of America v Universal City Studios, Inc, 464 US 417 (1984) • “The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.”
Justice Blackmun (Dissenting) • It is no answer, of course, to refer to and stress, as the Court does, this Court's 'consistent deference to Congress' whenever 'major technological innovations' appear. Perhaps a better and more accurate description is that the Court has tended to evade the hard issues when they arise in the area of copyright law. I see no reason for the Court to be particularly pleased with this tradition or to continue it.
Jessica Litman • Historians remind us that the significance of the Magna Carta was more symbolic than practical: The English King neither respected nor complied with it. So, too, with what the Home Recording Rights Coalition calls the Magna Carta of the Technology Age. Briefs filed in the Grokster case argue that the Sony decision has protected innovators from overreaching, litigious copyright owners. If that’s so, it’s hard to argue that the case has done an especially effective job.
Recording Industry Association of AmericavDiamond Multimedia Systems, Inc, (1999) • The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act.
UMG Recordings, Inc. v. MP3.Com, Inc (2000). • Here, although defendant recites that My.MP3.com provides a transformative "space shift" by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium--an insufficient basis for any legitimate claim of transformation .
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (Feb 12, 2001) • We conclude that the district court did not err when it refused to apply the "shifting" analyses of Sony and Diamond. Both Diamond and Sony are inapposite because the methods of shifting in these cases did not also simultaneously involve distribution of the copyrighted material to the general public; the time or space-shifting of copyrighted material exposed the material only to the original user.
re Aimster Copyright Litigation, 252 F.Supp.2d 634, 2002 • The facts of the instant case and Diamond Multimedia are markedly different. The activity at issue in the present case is the copying of MP3 files from one user's hard drive onto the hard drive of another user. The Rio in Diamond Multimedia, by contrast, "merely [made] copies in order to render portable, or 'space shift,' those files that already reside on a user's hard drive."
Streambox VCR & Ripper • Streambox's VCR is not entitled to the same 'fair use' protections the Supreme Court afforded to video cassette recorders used for 'time-shifting' in [Sony]… Here, by contrast, copyright owners have specifically chosen to prevent the copying enabled by the Streambox VCR by putting their content on RealServers and leaving the Copy Switch off.
“Fair use in America simply means the right to hire a lawyer to defend your right to create. ” Lawrence Lessig
MGM Studios, Inc v Replay TV Inc. No. 01-09801 (C.D. Cal. Nov. 14, 2001). • Paramount Pictures and 27 other major movie studios, television networks, and cable companies brought a legal action in 2001 against the developers of an innovative new digital video recorder called "ReplayTV 4000". • The chief executive officer for Sonic Blue, Greg Ballard, observed that his company spent $3 million per quarter on legal fees to defend itself in the Replay TV case. In March 2003, the ReplayTV creators filed for bankruptcy and sold off their assets.
“People who watch TV without commercials are stealing from the entertainment producers".Jamie Kellner, Turner Broadcasting
Huntsman v Soderbergh (2004) • Steven Soderbergh, the director of Sex, Lies, and Videotapes, together with other Hollywood Directors, the Directors Guild of America, and the movie industry brought legal action against the manufacturers of Clearplay, a new form of software which allowed viewers to skip violent or sexual context while watching DVDs at home.
Family Entertainment and Copyright Act 2005 • Republican Representative Lamar Smith introduced HR 357, the Family Entertainment and Copyright Act of 2005 to the House of Representatives. HR 357 confirmed the legal right of individuals in their homes to skip and mute over unwanted contact in motion pictures. In January 2005, Republican Senator Orrin Hatch introduced the bill to the Senate. President Bush signed the Family Entertainment and Copyright Act in April 2005.
MGM v Grokster (2005) • The MPAA and the RIAA filed copyright infringement lawsuits against Grokster, Streamcast, and Kazaa BV: "[The] defendants have created a 21st century piratical bazaar where the unlawful exchange of protected materials takes place across the vast expanses of the Internet, and where the materials being exchanged include first-run movies currently playing in theaters and hit songs from virtually every major recording artist".
Justice Souter –the Inducement Rule • We adopt it here, holding that one who 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, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential.
Justice Souter –the Inducement Rule • Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves.
Justice Souter –the Inducement Rule • The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.
Justice Ginsburg • This case differs markedly from Sony. Here, there has been no finding of any fair use and little beyond anecdotal evidence of noninfringing uses. In finding the Grokster and StreamCast software products capable of substantial noninfringing uses, the District Court and the Court of Appeals appear to have relied largely on declarations submitted by the defendants.
Justice Ginsburg • In sum, when the record in this case was developed, there was evidence that Grokster’s and StreamCast’s products were, and had been for some time, overwhelmingly used to infringe, and that this infringement was the overwhelming source of revenue from the products.
Justice Breyer • * Sony's rule is clear. • * Sony's rule is strongly technology protecting. • * Sony's rule is forward looking. • * Sony's rule is mindful of the limitations facing judges where matters of technology are concerned.
Justice Breyer • Sony thereby recognizes that the copyright laws are not intended to discourage or to control the emergence of new technologies, including (perhaps especially) those that help disseminate information and ideas more broadly or more efficiently. Thus Sony's rule shelters VCRs, typewriters, tape recorders, photocopiers, computers, cassette players, compact disc burners, digital video recorders, MP3 players, Internet search engines, and peer-to-peer software.
Justice Breyer • Given the nature of the Sony rule, it is not surprising that in the last 20 years, there have been relatively few contributory infringement suits--based on a product distribution theory--brought against technology providers (a small handful of federal appellate court cases and perhaps fewer than two dozen District Court cases in the last 20 years). I have found nothing in the briefs or the record that shows that Sony has failed to achieve its innovation-protecting objective.
Steve Jobs • “The problem is we are still competing with piracy. The labels make more money from selling tracks on iTunes than when they sell a CD. There are no marketing costs for them. We are competing with piracy, so it needs to be a fair price — if the price goes up people will go back to piracy . If they want to raise prices they are getting greedy”.
