Rebecca Tushnet

Copyright’s Intent, Mark McKenna (with Laura A. Heymann
& Alfred C. Yen)

Cox: Contributory infringement for service providers can be
shown only with intent, or with a service tailored to infringement. What
happened to Gershwin? Will courts really accept that? Will they expand vicarious
liability more to capture intuitions they have about fault?

Common-law tort origin is the claim, but ©’s rules are
misaligned from tort. Is this all © exceptionalism? Many of us feel that courts
are searching to attribute fault but don’t have the right anchoring in tort law
fault principles.

First, ©’s insistence on hard line b/t direct infringement
and secondary liability. Tort law more flexibly assigns first-party liability
to those whose conduct causes the injury—co-tortfeasors when contributions are
deemed sufficient, even when another party’s participation is required for harm
and even when co-tortfeasor’s conduct is not the proximate cause. Joint
liability—tort doesn’t regard that liability as secondary. They’re not
derivatively liable for wrongful conduct of another, but liable b/c of their
own wrongful contributions to harm. If party most proximate to harm is
batterer, the co-tortfeasor is also a batterer. Tort only very rarely imposes
truly secondary liability (wrongs committed by others). Vicarious liability is
the standard, but it’s not specific to the particular conduct but rather exists
because of the broader relationship (employment) to the tortfeasor. Enterprise
liability too.

Basically true even for strict liability like
blasting/harboring a wild animal. Even when D’s own conduct is also sufficient
to subject them to liability—when landlord engages w/wild animal in ways that
could be called a harborer—that’s not derivative liability. Otherwise landlord
might be negligent in their own conduct (renting to a known harborer). So ©
being strict liability doesn’t demand a different approach.

Framing of whole Q of secondary liability is thus already
off on the wrong foot from tort perspective.

© ignores wrongful contribution to an injury: party’s own
negligent conduct exposes the P to third-party wrongdoing, like landlord who exposes
tenants to assault, or train leaving passenger in dangerous area. Liability
there is not co-tortfeasor; this category doesn’t put D in same category as
other tortfeasor: negligence liability, not battery, for negligently exposing P
to third-party battery. Doctrines like causation, act/omission, etc. come into
it. The remedies are negligence remedies—no punitive damages even if third party
engages in intentional tort.

How does © get misaligned? Courts initially concerned with
co-infringers—people who performed part of the act that led to infringement.
Drawing on patent cases where infringement requires assembly of lots of parts.
A common enterprise, either directly or indirectly where one party makes a component
to be combined with another. When co-infringers weren’t amenable to suit, Ps
tried to bring in more upstream participants to say they were also co-infringers.
Courts started using the term “contributory infringement.” But they weren’t
really developing it as a theory of derivative liability, but rather describing
why the contributions of Ds made them co-infringers. These were common
enterprises—common purpose to cause the infringement.

Part of the confusion in © is emphasis on secondariness of
liability, unplugged from fault principles. If we tried to do more faithful
mapping to tort law: we should be very reluctant to impose true secondary
liability other than vicarious liability, which we would define much more
narrowly—a relationship like employer/employee or joint enterprise—relationships
not specific to the infringing conduct, with much higher levels of control. Thus,
we’d reorient to (1) co-infringers—liable b/c their own conduct makes them fairly
labeled an infringer, subject to © remedies, including inducement and providing
products w/no substantial noninfringing use; could also include, per Sotomayor,
other cases of aiding and abetting where there’s knowledge plus material
contribution as in tort law where tort law demands significant
contribution at a time when it can be said to reflect a meeting of the minds in
furtherance of tortious conduct, not just any time/knowledge of past infringement.
(2) negligent exposure to third-party infringement; implication of duty,
breach, causation and damages. Not really © infringement but negligence, so the
damages are different.

Lea Bishop: so is © not really a strict liability offense?

A: these doctrines aren’t limited to intentional torts, but
the way the courts talk about the other party’s contribution is about intent to
interact w/other D—so it’s not intent in the “intended to infringe” way but “intended
to work with.” Underlying tort doesn’t require proof of intent. Cox’s categories
of intent map pretty well if they mean “intent to work together” rather than “intent
to carry out infringement.”

The New Law of Vicarious Liability in Copyright, Michael
Carroll

Cox tells courts to change their vocabulary. Does that
matter? If so how? Restatement (Second) of Agency conceives of two types of
principal/agent employment relationships. Master/servant where there’s agency v.
independent contractor who may or may not be an agent. It was against that tort
law background that the 2d Circuit decided Shapiro, Bernstein about whether a department
store owner/operator was liable for sales of infringing recordings by
concessionaire. Court rejects independent contractor defense: right and ability
to supervise plus obvious and direct financial interest in exploitation of
copyrighted materials—looking to © policy and says policy is best served by
imposing liability in these circumstances. Courts repeat those terms, not with
full consistency.

Sony came along: The use of the term vicarious
liability was imprecise in the opinion, but Justice Stevens used the term for
any kind of indirect liability. 9th Circuit kept treating Grokster as simply
ratifying Shapiro, Bernstein. But Grokster’s formulation is different! Ignored
Justice Souter’s restatement; Cox says that the Court is the boss. You’ve got to
start using the magic words. If one infringes by profiting from direct
infringement, financial interest isn’t enough: profit is revenue minus cost.
But maybe it’s not a big deal. Declining to exercise a right to stop or limit
direct infringement: to decline to take action implies both knowledge and
intent. But as an outgrowth of respondeat superior, vicarious liability has
been treated as strict. How can that be reconciled?

Cox’s treatment of Grokster suggests that the Court will
rely on its own restatement of vicarious liability when it reaches a relevant
case. Courts will need to develop a standard for declining to exercise
right/ability. A relationship akin to employment will impute knowledge to hold
that supervising party declined to act; but a service provider for an internet
user would require more evidence than a contract that said you could be cut off
w/o some specific notice.

Example: tape machine manufacturer & its retailers: 8th
circuit said they were liable b/c of contracts w/retailers for how machines
were used; machines were distributed free; some tape sales were to infringers
& manufacturer profited from tape sales. Not sure that could suffice.

Question: where did Souter get his words? Not in the briefs
in Grokster.

Eric Goldman: thought that Grokster was p-favorable; what’s
the empirics?

RT: wouldn’t it be stronger to start from the point that the
real name of/justification for vicarious liability is agency liability? Service
user is obviously not agent of service provider, so that would help realign
with larger agency/vicarious liability law.

Also: read the SCOTUS sexual harassment cases from 1998
& Ginsburg’s characterization of the liability standard, where she makes similar
moves about vicarious liability.

Grimmelmann: as with shadow docket, SCOTUS is telling lower
courts to read their tea leaves and comply.

Copyright Exceptionalism in the Supreme Court’s Secondary
Liability Cases, Pamela Samuelson

© industries seek broad liability rules for tech companies;
industry turned to Gershwin definition from 2d Circuit in Sony, Grokster, &
Cox, claiming that Gershwin was the bedrock foundation for their claims. © exceptionalist
arguments derived neither from statute nor common law, but claims about massive
uncontrolled infringement. But Ct even in Sony didn’t cite to Gershwin except
as vicarious case.

Grokster: MGM no longer relying on Gershwin alone, but
emphasized that Gershwin’s definition of contributory liability included
inducement. Court looked to Gershwin for inducement as well as to patent law. Cox
is a lazy opinion; Sotomayor is making more sense. Asks: why not aiding &
abetting? Some options: there’s nothing in the statute; the statute says “to authorize”
which didn’t happen; no inducement b/c Cox didn’t encourage infringement; no
special tailoring, no direct financial benefit; no a&abetting b/c there’s
no intent to aid infringers. Material contribution w/knowledge was Sony’s only
chance, but broadband service wasn’t proximate cause and Cox’s after the fact
knowledge/lack of way to know which user actually infringed was too limited to
justify liability.

Pressure on vicarious infringement & volitional conduct
will exist, but probably not on inducement b/c Hikma reinforced the requirement
of active inducement in patent context.

Did SCt really intend to overturn Netcom such that failure
to take something down after notice is no longer material contribution sufficient
to justify liability? DMCA is not a dead letter b/c many incentives to comply
still exist. [Including incentives to comply for other countries’ regimes.]

Jim Gibson: Even Sotomayor wants to use a&a for a heightened
mens rea—intent of helping other person succeed in committing wrongful conduct,
not just intent to perform the act that enables infringement. So the common
focus on intent seems like the most limiting factor going forward, not whether
a&a can also be included.

A: Taamneh was important to Cox despite few mentions—the required
intent (to aid terrorists) was something the Court thought about in that
context. She expects intent to get watered down.

Fearing (and Loathing) the Common Law of Copyright, Shyam
Balganesh

Why the reluctance of the Court to engage with © as a common
law system? Thomas says: we’ve recognized specific forms of secondary © liability
that predate the Act, but we’re loath to expand liability beyond that. Sotomayor
says: why?

Legislative-judicial dynamic around parts of the statute has
been essential to the 1976 Act. Typology: Legislative modality: novation;
judicial task: interpretation (Congress invented this and didn’t draw from
prior case law); example: joint works

L: Codification; J: preservation/interpretation; E: first
sale

L: Silence (decided not to speak; mess already existed by
1960s & 1970s); J: unconstrained law-making; E: substantial similarity

L: Delegation; J: constrained law-making; E: fair use.

Sony has the right result but made a methodological error:
Stevens says that Act doesn’t expressly render anyone liable for infringement
committed by another & talks about absence of express language requiring
courts to jump in. This is only partially true b/c of “to authorize” in 106,
which Sony & Cox don’t mention—it has clear instantiated meaning and long
history. Thomas has a theory of congressional primacy; the legitimacy of court-made
law is always tested against backdrop of congressional action or inaction; seemingly
a majority of the Court has accepted/acquiesced to this view. Clear patterns in
his opinions in Star Athletica, dissents in Public.resource.org and Oracle: you’re
using fair use to annul the statutory treatment of software. Even in Fogerty v.
Fantasy: text of statute is clear; interpretation ends.

Thomas’s disdain for common law; three views. If there’s a
backdrop of rules against which Congress legislates, appealing to those rules
is legit but frozen in time. For delegated lawmaking—ongoing elaboration
required for open-ended terms with express or implicit recognition that
judge-made law will follow—he thinks it’s legitimate if the text constrains it
with guardrails; securities law is an example of his objection b/c there’s not
enough guardrails. Finally, independent lawmaking is wholly illegitimate (no
gov’t edicts doctrine).

Maybe this was a category error: failing to discuss “to
authorize.” Doesn’t think so, though, b/c briefs raised it. But he wasn’t
convinced that there was a textualist hook. Raises Q: what does this do to
other parts of © law if this vision of interpretive structure has a majority?
Fair use implications: only if it is compatible w/the rest of the statute.
Originality: same plane. Infringement analysis: implications for legislative
reform. Beware of textualists when advocating for reform: how a court would
handle that.

RT: Textualism masks that placement in categories is
contestable: Glynn Lunney: reproduction/derivative works could have replaced
substantial similarity; codification could have been read as novation in
interpreting first sale versus exhaustion.

NO FAKES and similar ROP proposals often have language like “to
the extent protected by the 1A” in their exclusions—how could this form of
textualism handle that? Would Thomas’s approach ignore those exclusions just
like he ignored the open ended language about useful articles in Star Athletic.

A: irony of Thomas’s MO: claiming that there’s plain meaning
while refusing to look at legislative intent—he ignores “to authorize” b/c
explaining what its plain meaning was would require a citation to the
legislative history.

Our Byzantine Secondary Infringement System, James
Grimmelmann

Conventional view: in US, there’s vicarious infringement and
then intent-based contributory liability. He wants to do a thorough survey of
all the secondary liability doctrines in US law, describe & critique it as
a system, and then possibly suggest fixes.

True secondary liability doctrines: liability for someone else’s
completed act of direct infringement.

What about infringement by authorization? Issuing a
purported license w/o the right to do so—seems literalist but probably killed
by Subafims.

Agency law: respondeat superior is used all the time where
companies are held liable for employee’s actions. Agent’s actions and knowledge
are imputed to their principal, often invisibly, even when not actuated by
purpose to serve employer [not sure this last is true—looking forward to cites].
Especially in PRO licensing cases where employees at a bar are used to hold
owners liable even when corporate law wouldn’t do it.

Volitional conduct/the server test: these often cut in
opposite directions and interact weirdly with licenses granted to platforms by
users.

Quasi-secondary liability: for conduct that could facilitate
infringement regardless of whether there is actually infringement.

Scaffolding doctrines: direct infringement has no mental
state requirement; makes stakes much higher for direct/secondary. Willful &
innocent infringement also matter to statutory damages.

Criminal liability for willful infringement; brings in general
criminal doctrines of aiding & abetting; there’s also a “causing” criminality
but no federal attempts criminal liability. There’s also conspiracy liability:
it’s a crime to conspire to criminally infringe; Pinkerton: conspiracy to
commit any crime subjects conspirator to liability for any criminal infringement
that’s reasonably foreseeable and in furtherance of criminal conspiracy. RICO: ©
infringement is a predicate crime.

512: Does it displace common law? Volitional conduct? Apply
beyond enumerated services? Courts generally say no to all. Tony Reese has given
good reasons to think it’s a bit more complicated. The exceptions it carves out
all sound in secondary liability (quasi-contributory; quasi-vicarious—presumed that
direct liability wasn’t possible so how could it be the same as common law
liability?); what about the repeat infringer suspension—what is a reasonable
policy? Recreated a lot of secondary infringement doctrine under the head of
512.

TPMs also matter: Serial copy management systems—you must
implement them and you’re liable for distributing tech w/o them—that’s a
kind  of quasi secondary liability.

1201 is too, arguably mapping onto Cox intent prongs—distributing
tech “primarily designd for,” knowingly marketed for use in circumvention, or
have limited commercial use except for circumvention.

1202 is too: knowingly language but not in any
coherent/organized fashion.

This is far too complicated. There are way too many minor
variations and overlaps. What happens to 512’s quasi contributory liability
exception now that Cox has repudiated knowledge plus material contribution?
Overlapping but inconsistent tests. Confused relationship of statutory
codification to common-law elaboration: volitional conduct, server test, and
512 all seem to do similar work. Loopholes and traps for the unwary—Aereo was
$100 million waste.

Jim Gibson: distribution liability can be thought of as
secondary liability for the underlying reproduction, though the statute doesn’t
say that.

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