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Do You Grok?1 Substantial Certainty in Contributory Copyright Infringement
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591
Do You Grok?
1
Substantial Certainty in Contributory
Copyright Infringement
Cynthia Miller
†
Introduction..................................................................................591
I. Contributory Copyright Infringement: Review of the
Relevant Case Law ..................................................................595
A. The Betamax Case ..............................................................596
B. The Unresolved Circuit Split: Aimster and Grokster ..........599
1. Aimster ............................................................................ 600
2. Grokster: Ninth Circuit to the Supreme Court................ 602
II. Copyrights, Technology and Torts..........................................608
III. Sony, Substantial Certainty and the Balance..........................611
A. The Restatement on Intent ..................................................612
B. The Substantial Certainty Limitation ..................................615
C. Substantial Certainty Applied to Contributory
Copyright Infringement .....................................................617
Conclusion ...................................................................................620
INTRODUCTION
The legal theory of contributory copyright infringement requires a
balancing of the competing interests of copyright holders and society.
When a company distributes a product or service capable of both legal
and illegal uses, the copyright holders seek broad enforcement of their
rights and the distributors seek absolution based on the public benefits
derived from the technological innovation.
2
The Supreme Court, in an
1
The term “grok” was coined by the author Robert Heinlein in the science fiction
novel Stranger in a Strange Land; it means “to understand thoroughly and intuitively.”
W
EBSTER’S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 842
(1996).
†
J.D. candidate 2007, Seton Hall University School of Law; B.A., 2003, University
of Georgia; B.S., 2003, University of Georgia. The author extends her special thanks to
Professor Jake Barnes for his ideas and contributions to the composition of this comment.
Also, she would like to thank her family and, in particular, Liam Holland and Christopher
Miller for their support and inspiration during the writing process
2
In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003).
592 SETON HALL CIRCUIT REVIEW [Vol. 2:591
effort to balance these competing interests, has stated that the distributor
of a product or service capable of substantial noninfringing uses is not
liable as a contributory infringer; however, that seminal decision is laden
with cumbersome language.
3
In recent years, the Ninth and Seventh
Circuits split regarding certain aspects of the Sony rule.
4
Despite the
opportunity to clarify the rule and resolve that circuit split, the Supreme
Court sidestepped the issue entirely.
5
Instead, the Court created a new
rule that holds companies liable for purposely encouraging
infringement.
6
Already, lower courts have applied the Grokster
inducement rule.
7
It is only a matter of time before another case
involving new technology requires a clarification of Sony in order to
strike a balance between the interests of society and copyright holders.
By applying tort law reasoning to the theory of contributory
copyright infringement, this comment clarifies the Sony rule for the
lower courts.
8
Contributory copyright infringement is a tort; thus, tort
law principles should apply.
9
The Restatement bifurcates the intent
requirement in tort law,
10
just as Sony and Grokster bifurcate the intent
requirement for contributory copyright infringement.
11
Although the
Court’s cumbersome language in Sony has created a circuit split, it does
so in an effort to articulate a substantial certainty limitation.
12
In some
instances, such as the one at issue in Sony, the Court will limit a
company’s liability if the product it distributes has substantial
noninfringing uses.
13
The exact definition of the word “substantial” has
3
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984).
4
Aimster, 334 F.3d at 649 (citing 2 PAUL GOLDSTEIN, COPYRIGHT § 6.1.2, p. 6:12-1
(2d ed. 2003)); MGM Studios, Inc v. Grokster Ltd., 380 F.3d 1154, 1162 n.9 (9th Cir.
2004) [hereinafter Grokster I].
5
MGM Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764, 2778-79 (2005) [hereinafter
Grokster].
6
Id. at 2779.
7
See MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d
1369 (Fed. Cir. 2005); see also Monotype Imaging, Inc. v. Bitstream, Inc., 376 F. Supp.
2d 877 (N.D. Ill. 2005).
8
For further discussion of the application of tort law principles to secondary liability
in copyright law, see the works of Professors Yen and Barnes. See David W. Barnes, An
Alternative Torts Model of Secondary Copyright Liability, 55 CASE. W. RES. 867 (2005);
see also Alfred C. Yen, Law, Technology & the Arts Symposium: “Copyright and
Personal Copying: Sony v. Universal Studios Twenty-one Years Later”: Sony, Tort
Doctrines, and the Puzzle of Peer-to-Peer, 55 C
ASE W. RES. L. Rev. 815 (2005).
9
Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996).
10
RESTATEMENT (THIRD) OF TORTS § 1 (Tentative Draft No. 1, 2001).
11
Grokster, 125 S. Ct. at 2780; Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 442 (1984).
12
Sony, 464 U.S. at 442.
13
Id.
2006] Substantial Certainty in Contributory Copyright Infringement 593
proved problematic for plaintiffs as well as the lower courts.
14
This
comment argues that the Court’s language in Sony actually incorporates
the Restatement’s suggestions regarding substantial certainty in
intentional torts. In the comments accompanying section one of the Third
Restatement, the drafters recommend a balancing test as a limitation on
liability despite a substantial certainty that harm will occur.
15
The
reasoning behind that recommendation mirrors the language in Sony.
16
Thus, an application of the substantial certainty limitation of intentional
tort liability to contributory copyright infringement cases will provide the
balance between the progress of technology and the rights of copyright
holders sought by Sony and, ultimately, entrusted to the determination of
the lower courts.
Part I provides a detailed review of the relevant case law,
particularly the Supreme Court’s opinions in both Sony and Grokster.
This section states the governing rules and discusses the diverging circuit
court opinions. Part I also highlights the Court’s determination to balance
the interests of copyright holders against the public’s interest in
technological innovation. This section provides the background
information necessary to understand subsequent sections.
Part II expounds upon the dual objectives of copyright law and
discusses its origins in the Constitution. This section also discusses the
links between contributory infringement and tort law. That theory
“originates in tort law and stems from the notion that one who directly
contributes to another’s infringement should be held accountable.”
17
However, when a product or service is capable of lawful and illegal uses,
the “Sony[] rule limits imputing [the] culpable intent” to commit
contributory infringement based on product distribution.
18
Since its
pronouncement, the Sony rule has caused a great deal of difficulty. The
circuits have split regarding their interpretation of the Sony rule; the
Supreme Court refused to provide guidance for the lower courts.
19
The
tort law definition of intent provides the much-needed clarity.
Part III clarifies the Sony rule. The first sub-section discusses the
Restatement’s approach to intent in tort law and applies that principle to
contributory copyright infringement. In particular, the Restatement
explains that “[a] person acts with the intent to produce a consequence if:
(a) The person has the purpose of producing that consequence; or (b) The
14
Grokster, 125 S. Ct. at 2778.
15
See RESTATEMENT (THIRD) OF TORTS § 1 cmt. e (Tentative Draft No. 1, 2001).
16
Sony, 464 U.S. at 442.
17
Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996).
18
Grokster, 125 S. Ct. at 2779.
19
Id.
594 SETON HALL CIRCUIT REVIEW [Vol. 2:591
person knows to a substantial certainty that the consequence will ensue
from the person’s conduct.”
20
Similarly, Sony and Grokster provide two
situations in which a defendant may possess the intent to commit
contributory infringement.
21
The Restatement also makes many careful
qualifications concerning its definition. As evinced by the Sony
litigation, despite knowledge to a substantial certainty, a defendant “may
be engaging in a generally proper activity for generally proper reasons,
even though the activity produces harm as an unavoidable but unwanted
byproduct.”
22
In those situations, the Restatement limits liability unless
the defendant has a substantial certainty that his conduct will affect a
particular victim or those contained in a small class of victims within a
localized area.
23
The Restatement also provides specific examples of
industries that qualify for the substantial certainty limitation.
24
Those industrial examples support the argument that the substantial
certainty limitation actually creates a balancing test for the protection and
promotion of industries serving the public good. In addition, the
limitation is inspired, at least in part, by the Restatement (Second) of
Torts’ discussion of negligence.
25
Prior to the Restatement, the courts
considered this balancing test to be good public policy. The courts have
applied this test in the context of the railroad industry, an example
enumerated in the Restatement. In those instances, the social benefits
derived from that industry outweigh the harmful consequences of
operating a railroad. Thus, the substantial certainty limitation applies
when a defendant’s (an industry or software provider) conduct provides a
net social benefit despite a substantial certainty of some harmful
consequences.
A desire to punish the guilty, rather than the knowing, justifies the
substantial certainty limitation. Although companies do not desire their
railroads to cause serious bodily injury, such injuries will likely occur
regardless. Despite knowledge, the company lacks a subconscious,
blameworthy intent. On the other hand, if a company knows to a
substantial certainty that its business will cause the serious injury or
death of an employee, “a particular victim, or . . . someone within a small
class of potential victims within a localized area,”
26
that company is
liable, because its knowledge is not general but reveals a more blame-
20
RESTATEMENT (THIRD) OF TORTS § 1.
21
Grokster, 125 S. Ct. at 2780; Sony, 464 U.S. at 442.
22
RESTATEMENT (THIRD) OF TORTS § 1 cmt. a.
23
RESTATEMENT (THIRD) OF TORTS § 1 cmt. e.
24
Id.
25
See RESTATEMENT (THIRD) OF TORTS § 1 cmt. e, reporter’s notes.
26
RESTATEMENT (THIRD) OF TORTS § 1 cmt. e.
2006] Substantial Certainty in Contributory Copyright Infringement 595
worthy mental state. Thus, the substantial certainty limitation ensures
that only those people/entities that demonstrate a clear intent (established
by their purpose or knowledge) will face liability.
The last sub-section explains that the substantial certainty limitation
provides a point of balance between the interests of copyright owners
and the public’s interest in technological innovation. When applying the
Restatement’s theory of intent, as well as its limitations to contributory
copyright infringement, two scenarios result in liability. One represents
Grokster and occurs when an entity purposefully induces copyright
infringement. The second scenario represents Sony and occurs when an
entity distributes a product (or provides a service) capable of infringing
and noninfringing uses. In the latter instance, the substantial certainty
limitation focuses liability on entities with a culpable state of mind.
Application of the substantial certainty limitation requires two steps.
First, the court must ask if “the defendant has knowledge to a substantial
certainty that [its] conduct will bring about harm to a particular victim, or
to someone within a small class of potential victims.”
27
If the answer is
yes, the defendant will face liability based on its intent to cause harm. If
the answer is no, the court must balance the social benefits derived from
the product against the harm it produces. If the product or service creates
a net social benefit, the court should limit liability: society’s interest in
technological innovation is served. If the product or service does not, the
court will impose liability: copyright holders are protected. Thus, the
substantial certainty limitation clarifies the Sony rule and helps the courts
balance artists’ and society’s competing interests.
I.
CONTRIBUTORY COPYRIGHT INFRINGEMENT: REVIEW OF THE
RELEVANT CASE LAW
Because the subsequent discussion of contributory copyright
infringement requires a detailed understanding of the relevant case law,
this section provides a review of the two most influential Supreme Court
decisions on the subject as well as a discussion of the current circuit split.
In 1984, the Supreme Court faced a challenging issue: when is the
distributor of a product capable of both lawful and unlawful uses liable
for contributory copyright infringement? A deeply divided Court ruled
that the distributor of a product capable of substantial noninfringing uses
is not liable.
28
The rule proved troublesome as technology advanced. The
Seventh and Ninth Circuits split regarding their interpretation of the rule
and each issued opinions criticizing the other. Then approximately
27
Id.
28
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984).
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