A Copyfighter\’s Musings

See here.  Here’s the summary of the argument:

“It is critical to preserve the Sony defense, which allows technology vendors to innovate without fear of liability imposed simply because their socially valuable technologies are misused by third parties to infringe copyright. This Court should emphatically reject the Seventh Circuit’s attempt to engraft a nebulous balancing test onto the venerable Sony defense, and it should also make clear that courts ought not to inquire into whether a technology might have been designed differently to reduce or eliminate infringement. No such radical surgery is necessary because, when properly understood, the Sony defense offers no shelter to rogue companies for conduct that actively encourages their users to infringe.”

Note that “active encouragement” is not intended as a new standard (see footnote 4).  However, if you followed the proposed alternatives to INDUCE closely, you’ll recognize the proposed reading of Sony.  On a very quick skim, my first thought is: how is this active encouragement standard not open to abuse like the control/alternative design/balancing test standards the brief rejects?  In the danger a difference in kind or degree?  “Active encouragement” does characterize only a limited range of activities, and the brief specifically urges to not allow inferences from particular designs or business model:

“Although the district court’s failure to examine the record for evidence of active encouragement justifies a remand in this case, the Court should nevertheless make clear that the range of potential guilty conduct is quite limited. First, active encouragement does not exist merely because a technology vendor profits indirectly from infringing use – any business plan based on advertising will profit in proportion to the number of users a technology has, but that fact alone does not demonstrate active encouragement of illegal activity. Second, the presence of encouragement is a question of overt acts, and the purpose for which a technology may have been designed plays no part in that inquiry…. Third, the fact that a vendor maintains an ongoing relationship with its customers does not, without more, demonstrate encouragement. Fourth, no acts relating to the design, manufacture, distribution, or operation (by the vendor or distributor) of a technology that is capable of substantial noninfringing uses could constitute impermissible encouragement. Finally, the question whether an act constitutes active encouragement turns on traditional principles of contributory liability.”

In this way,  the standard they propose is overall rather technology-protective.  Also, there’s a lot of great stuff in here about why moving away from a bright-line, substantial non-infringing uses rule would be problematic. And they rightly criticize Aimster - choice line: the 7th Circuit “abandon[ed] the Sony rule in everything but name.”  Indeed, the brief goes even further and criticizes Napster’s focus on control.

Again, that’s just from a quick skim - I may have more to say on this and the VSDA brief later. And the other briefs, I suppose.  Watch here for the briefs, or use Joe’s RSS feed here (via Copyfight).  And is that Pam Samuelson blogging about the case?  Much to read and write!

Filed by Derek Slater at 4:32 pm under General news