Category: Notes

A Little Help with Sharing: A Mandatory Licensing Proposal to Resolve the Unanswered Questions Surrounding Peer-to-Peer Liability for Contributory Copyright Infringement in the Wake of Grokster – Note by Julie Zankel

From Volume 80, Number 1 (November 2006)
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In June 2005, the Supreme Court held that the peer-to-peer (“P2P”) networks Grokster and Streamcast1 could be held liable for contributory copyright infringement upon a showing that network administrators clearly expressed support for or took other affirmative steps to encourage infringement. In the Supreme Court’s only prior holding on the issue of secondary liability, Sony Corp. of America v. Universal City Studios, Inc., the Court established that a manufacturer could not be held liable for contributory infringement if the device was “capable of substantial noninfringing uses.” In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Court focused on the networks’ culpable conduct-relying on an inducement theory-and came to a conclusion that would allow the lower court to find Grokster liable on remand without resolving the current circuit split on the issue4 or rethinking or reinterpreting its prior holding in Sony. This ruling essentially overturned the Ninth Circuit’s holding that Grokster was not liable for its users’ infringement merely by virtue of the fact that the system also had substantial noninfringing uses. The Grokster Court instead held that the Sony doctrine did not foreclose the possibility that an actor could be liable for contributory infringement, even if the device is capable of substantial noninfringing uses, when there is evidence the actor encouraged and induced illegal use of the product.

Thus, while it is now clear that a P2P network that encourages infringing uses of its product can be liable for contributory copyright infringement, the extent of liability for a network that does not actively induce users to infringe copyrights where the system is capable of both infringing and noninfringing uses remains uncertain. Further, the Grokster decision is not instructive as to what exactly inducement entails. While the Court was adamant that Grokster’s actions amounted to inducement in the present case, it gave no explanation regarding what actions a network would have to take to be considered “intentionally inducing… infringement,” or alternatively what a network would have to do to avoid inducing infringement on a system capable of both infringing and noninfringing uses. This lack of clarity is of particular importance considering the growing popularity of these types of networks. P2P networks, in particular, are increasingly being used by universities, government agencies, corporations, libraries, and other organizations. Exchange over P2P networks is not limited to music (the digital files at issue in Grokster), but includes motion pictures, novels, videogames, television programs, and photographs.8 In addition, as digital technology rapidly advances, it will be feasible to disseminate more and more types of copyrighted and uncopyrighted works through P2P networks “with ever greater speed and efficiency.”

Further, considering the amount of money that is at stake (Grokster, for example, agreed to “pay up to $50 million in damages”), it is extremely important that P2P networks have some sense of their potential liability in a case where no inducement exists, and what they could and should do to avoid such liability. The Grokster opinion is not instructive on this point, and this is exactly where the two concurring opinions diverge. Justice Ginsburg’s concurring opinion seems to imply that, had there been no “inducement,” a network such as Grokster would still fail the Sony test. On the other hand, Justice Breyer’s concurrence maintains that without culpable intent, a network such as Grokster should not be liable for contributory copyright infringement.

Prior to the Grokster case, both the Ninth Circuit and the Seventh Circuit confronted contributory copyright liability issues in A&M Records, Inc. v. Napster, Inc. and In re Aimster Copyright Litigation, respectively. Although in both cases the defendants were found liable for the infringement of their users, due to the unclear standard set forth in Sony, these two courts came to divergent conclusions in their analysis with respect to the circumstances under which contributory liability should and could be imposed. While the Ninth Circuit focused on whether the defendant had actual or constructive knowledge of the infringement and subsequently failed to act to curb the infringing activity, the Seventh Circuit concentrated on whether the device was actually used for noninfringing purposes. The Seventh Circuit interpreted Sony to further require that even where noninfringing uses exist, the network provider must demonstrate it would have been disproportionately costly to design the server or monitor the network in a way that would eliminate or reduce the infringing uses in order to escape liability. 

This debate regarding issues surrounding secondary liability is one that must be resolved quickly. Clarification of the Sony rule is necessary to encourage legitimate P2P networks by ensuring that networks are fully informed of the extent of their potential liability. Without a resolution, servers will have no way to determine their liability or know what reasonable steps should be taken to avoid such liability. The Grokster majority avoided this question by basing its decision on an inducement theory-arguing this would enable copyright owners to protect themselves while keeping the Sony rule intact so as not to chill innovation. The lack of guidance in the Grokster decision, however, could itself chill innovation as it will lead P2P network providers to take economically inefficient steps to avoid liability, disallow uses on their servers even though the uses would not infringe and might further education or some other important goal, or completely abandon their networks in favor of something less risky.

This Note will argue that the best way to resolve this conflict is through a mandatory licensing scheme that puts the burden on the content industry rather than the technology provider to track the use of protected works and petition the service provider for a reasonable royalty.

 

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Pacifica is Dead. Long Live Pacifica: Formulating a New Argument Structure to Reserve Government Regulation of Indecent Broadcasts – Note by Joshua B. Gordon

From Volume 79, Number 6 (September 2006)
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At 9:00 PM on April 7, 2003, Fox Broadcasting (“Fox”) aired the penultimate episode of Married by America, a reality television show that allowed the public to select potential spouses for its contestants. Six minutes of the episode detailed the remaining two couples’ bachelor and bachelorette parties, during which strippers attempted to “lure participants into sexual activities.” Of the five million people who watched the broadcast, ninety complaints were filed with the Federal Communications Commission (“FCC” or “Commission”), the government agency that regulates television communications. In October 2004, the FCC determined that the six-minute segment contained explicit and patently offensive depictions of sexual activities. It thus determined that the content was indecent and in violation of federal law. For this violation, the FCC penalized both Fox and 169 Fox affiliates by issuing a Notice of Apparent Liability for $1,183,000 in fines. At the time, this was the largest proposed fine, or “forfeiture,” in FCC history.

 

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(Re)Constitutionalizing Confrontation: Reexamining Unavailability and the Value of Live Testimony – Note by Raymond LaMagna

From Volume 79, Number 6 (September 2006)
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The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Despite the sweeping tone of this declaration, the Confrontation Clause has been misunderstood, maligned, and misapplied by courts for the last century. At its core, confrontation reflects society’s notions of justice and procedural fairness. Confrontation developed under Roman law as a production requirement, unconnected to cross-examination. It was designed to ensure fair criminal procedure by requiring witnesses to testify live before both the accused and the trier of fact. In response to notorious abuses in England, where defendants were convicted without witnesses testifying live at trial, confrontation was included in the Bill of Rights by the Framers. But a mere century later, courts began to misconstrue the grant, sapping it of its intended meaning.

 

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Waiting for Watergate: The Long Road to FEC Reform – Note by Lauren Eber

From Volume 79, Number 5 (July 2006)
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In a February 2005 press conference about his proposed 527 Reform Act of 2005, Senator John McCain (R-AZ) vehemently expressed his views about the Federal Election Commission: “the Federal Election Commission has failed to do their duty….This is a corrupt organization. And I don’t use the word lightly. We need to reform the Federal Election Commission.” This was not McCain’s first public contribution to the litany of derogatory rhetoric about the FEC, which has been called the “Failure to Enforce Commission,” a “toothless tiger,” “FEC-less,” a “muzzled watchdog,” and “The Little Agency That Can’t.” McCain has previously called the FEC a “rogue agency” and “weak and failing.” But in a comment that is more than just name-calling, McCain gets to the heart of what is really wrong with the FEC: it is “structured by Congress to be slow and ineffective.”

Legislators have a vested interest in keeping the FEC weak and inefficient because they are among the potential targets of enforcement actions. Because reelection is the “dominant goal” of most legislators, they are unlikely to enact legislation contrary to their self-interest unless they perceive that failure to do so would cost them votes. Consequently, a substantial increase in the FEC’s power is unlikely until legislators feel pressure from the public to strengthen campaign finance enforcement. But FEC reform is currently too low on the public’s political agenda to capture politicians’ attention. Not even a major political scandal, like lobbyist Jack Abramoff’s admission that he bribed Republican members of Congress, was enough to alter the public’s apathy toward campaign finance. In fact, a January 2006 Pew Research Center survey found that “[t]he public has been hardly stirred” by the scandal and that “Jack Abramoff’s admission that he bribed members of Congress has sparked little interest.”

 

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Controlling Our Borders Through Enhanced Employer Sanctions – Note by Jeffrey L. Ehrenpreis

From Volume 79, Number 5 (July 2006)
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As a nation built by immigrants, the United States has historically maintained a generally pro-immigration policy. For many Americans, however, the current immigration system appears broken. Proponents of tighter immigration controls often point to the fact that two of the terrorists involved in the attacks on September 11, 2001 received approval of their immigration applications six months after the attacks took place. This oversight proved especially embarrassing to the then Immigration and Naturalization Service (“INS”), evidencing the ease with which a terrorist could enter the United States. With terrorism currently the chief policy concern of the United States, immigration issues play an increasingly important role on the American national security agenda.

 

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Closing a Resentencing Loophole: A Proposal to Amend 28 U.S.C. § 2255 – Note by Julie Austin

From Volume 79, Number 4 (May 2006)
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Historically, habeas corpus relief has provided a remedy in extraordinary cases for prisoners incarcerated in violation of the U.S. Constitution. Habeas relief brings to mind gross injustices – prisoners serving sentences for crimes they did not commit or prisoners who are incarcerated because they were not represented by counsel at their trials. Yet under current law, prisoners serving enhanced federal sentences may reduce their sentences without necessarily proving that any constitutional violation or error has occurred.

 

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The Right of Publicity vs. the First Amendment: Will One Test Ever Capture the Starring Role? – Note by Gloria Franke

From Volume 79, Number 4 (May 2006)
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America’s fascination with fame and celebrities is self-evident. In our culture, fame is used effectively to persuade, inspire, and inform the public in almost every aspect of our lives. Thus, for celebrities, fame has an inherent economic value, which they endeavor to enhance and protect through the relatively recent legal doctrine of the right of publicity. Broadly defined, the right of publicity is the “inherent right of every human being to control the commercial use of his or her identity.” Celebrities invoke this right to prevent the unauthorized commercial use of their names, likenesses, or other aspects of their identities in order to protect and control their valuable personas.

The public’s fascination with celebrities has evolved into the ubiquitous use of stars to symbolize individual aspirations, group identities, and cultural values. Celebrity images are therefore important expressive and communicative resources and the public’s use of these images is vital to the realization of the First Amendment goals of self-expression and the creation of a robust public discourse. Thus, there is a direct conflict between a celebrity’s right of publicity and the public’s right to free expression embodied in the First Amendment. Courts, in struggling to accommodate these competing interests, have failed to articulate a clear standard to resolve the conflict, resulting in a confusing morass of inconsistent, incomplete, or mutually exclusive approaches, tests, and standards. The chaos surrounding the scope of publicity rights in works protected by the First Amendment has led to a real hit on free expression that is especially troubling as we enter the digital age – with the Internet providing a global platform for expression in our multicultural society. Courts need a clear standard to take the leading role in resolving the conflict between the First Amendment and the right of publicity in expressive works. This Note proposes a test with the clarity and nuance to take center stage and resolve this conflict.

 

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Rxxx: Resolving the Problem of Performer Health and Safety in the Adult Film Industry – Note by Maria de Cesare

From Volume 79, Number 3 (March 2006)
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No matter how much fascination it may provide to the lives of the lonely, the curious, the adventurous, or the ordinary, it is undeniable that pornography poses problems. This statement is not startling or revolutionary; no other industry has unfailingly produced equal parts astounding revenue, excitement, shame, and fear among every echelon of society. For decades, the adult film industry has operated a thriving worldwide empire centered in Southern California, generating billions of dollars in revenue and producing thousands of films per year. Notwithstanding its status as one of the largest industries in a heavily regulated state, the adult film industry has flourished for decades without a discernible trace of government oversight. In recent years, however, a particularly insidious problem within the industry has perched itself precariously at the threshold of the public consciousness and has threatened to end the government’s historical indifference toward the industry’s practices.

In the spring of 2004, a spate of HIV infections among performers in the Southern California adult film industry induced a panic when it was discovered that over sixty performers had been exposed to the disease. In response to the potential outbreak, several major pornography companies voluntarily halted production for several weeks, and over fifty performers who had been identified as having sexual intercourse with the infected performers agreed to place themselves on a “quarantine list,” ceasing all adult film work while awaiting their HIV test results. Although the industry’s proactive response managed to contain the infection’s spread, the crisis sharply called into question the adequacy of current screening and testing procedures in the adult film industry, and underscored the need for increased preventative measures.

 

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