Picker on Lessig on Common Law Copyright

by on March 22, 2007 · 14 comments

I usually agree with Larry Lessig about copyright issues, but I found his op-ed on Grokster and Viacom to be rather off. I’ve been meaning to do a post about that, but Randy Picker has made the point better than I could:

[The Sony] case addresses two issues, whether home users engaged in fair use when they time-shifted free over-the-air broadcast television—the Court concluded that they did—and whether Sony could be held secondarily liable for copying done with the VCR. Just reading statutes, we might have thought the answer to that question was easy. As the majority opinion noted, the Patent Act expressly addressed secondary liability, setting forth in 35 USC 271(b) liability for one who “actively induces infringement of a patent” and in 35 USC 271(c) liability for contributory infringement. Congress obviously knew how to create secondary liability in intellectual property cases when it wanted to, and therefore chose not to do so in copyright when it failed to include comparable language to that of the 1952 patent act in the 1976 copyright statute. Case closed.

Not so said the Supreme Court: “the absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.” In the Court’s view, secondary liability was to be expected in almost all areas of the law, and it was the Court’s obligation to define how that liability would apply to the VCR. In concluding that Sony could not be held liable, the majority opinion relied on the “staple article” of commerce doctrine set forth in section 271(c) of the Patent Act. It is certainly true that the majority opinion in Sony told the movie studios to take their complaints to Congress, but it did that only after defining how the common-law doctrine of secondary liability would apply in this new copyright setting.

As I noted in my post when Grokster was decided, the Court’s decision in that case was in many ways quite conservative. The Court returned to the Patent Act and imported the active inducement standard set forth in section 271(b) of the Patent Act as part of the common law of secondary liability in copyright. In doing so, it mirrored what it had done more than two decades before when it had reached into the Patent Act to resolve the contributory infringement question in Sony. Not a change in method at all or a change in the way that courts have interacted with Congress in defining copyright law.

I found Lessig’s article particularly puzzling because he seemed to be advocating a greater role for Congress in fashioning copyright policies, which strikes me as a phenomenally bad idea. Although there’s plenty to find fault with in the treatment of copyright issues by both the Congress and the courts, it seems pretty clear to me that the good guys are far more likely to get a fair shake from the courts than from Congress. As I argued in my DMCA paper, the courts were doing a pretty good job of applying copyright law to high-tech devices until Congress put its thumb on the scale with the DMCA.

And while I was as disappointed as anyone at the outcome of Eldred, perpetual copyright is surely more the fault of Congress. Perhaps Lessig’s own experience in Eldred left a chip on his shoulder toward the Supreme Court in general.

  • Henry Miller

    You are missing something very important: congress itself has changed. I don’t mean which party is in power, I mean the letters.

    I first started following copyright law just after the DMCA (Like most people this blindsided me), and writing letters to my congressman. At first all I got was a generic form letter thanking me for writing. Now when I write the letter is very specific, “Like you I’m concerned that copyright has gone too far”.

    In short, congress has heard our letters. They know that letter writers are very likely to vote, and also get their friends to vote – based on the context of the letters. This is far more important than money. Right now those who want longer/stricter copyrights are just praying that congress doesn’t take the issue up, because they know congress is no longer in their favor – the people have spoken.

    Now we need to hit the grassroots hard to keep pressure on congress to change the laws.

  • http://techdirt.com/ Mike Masnick

    Tim,

    I’m not sure if Lessig was really advocating for a greater role for Congress in the piece — but rather is just pointing out what he sees as inconsistencies in the SC’s rulings. It’s sort of mocking the SC, because, basically, they told him that Congress had the final say on copyright law when his case came before them — but on Grokster, he feels that they went over the head of Congress.

    So, focusing on Congress is just his way of pointing out that they were inconsistent, not advocating a bigger role for Congress…

    At least that’s my interpretation.

  • Henry Miller

    You are missing something very important: congress itself has changed. I don’t mean which party is in power, I mean the letters.

    I first started following copyright law just after the DMCA (Like most people this blindsided me), and writing letters to my congressman. At first all I got was a generic form letter thanking me for writing. Now when I write the letter is very specific, “Like you I’m concerned that copyright has gone too far”.

    In short, congress has heard our letters. They know that letter writers are very likely to vote, and also get their friends to vote – based on the context of the letters. This is far more important than money. Right now those who want longer/stricter copyrights are just praying that congress doesn’t take the issue up, because they know congress is no longer in their favor – the people have spoken.

    Now we need to hit the grassroots hard to keep pressure on congress to change the laws.

  • fishbane

    “Perhaps Lessig’s own experience in Eldred left a chip on his shoulder toward the Supreme Court in general.”

    Or perhaps he’s reading the law as it stands, rather than as an advocate before a court?

  • http://weblog.ipcentral.info/ Noel Le

    ***As I argued in my DMCA paper, the courts were doing a pretty good job of applying copyright law to high-tech devices until Congress put its thumb on the scale with the DMCA.***

    Tim, allow the courts to do their job in setting DMCA precedence. One of the first things that came to mind in reading your paper is that the courts have no power to outline application of the DMCA.

    Have faith, grasshoppa…

  • http://weblog.ipcentral.info/ Noel Le

    ***I’m not sure if Lessig was really advocating for a greater role for Congress in the piece — but rather is just pointing out what he sees as inconsistencies in the SC’s rulings.***

    Lessig (and EFF) should stop filing cases just to make a point when they know their arguments are bogus…

  • http://techdirt.com/ Mike Masnick

    Tim,

    I’m not sure if Lessig was really advocating for a greater role for Congress in the piece — but rather is just pointing out what he sees as inconsistencies in the SC’s rulings. It’s sort of mocking the SC, because, basically, they told him that Congress had the final say on copyright law when his case came before them — but on Grokster, he feels that they went over the head of Congress.

    So, focusing on Congress is just his way of pointing out that they were inconsistent, not advocating a bigger role for Congress…

    At least that’s my interpretation.

  • fishbane

    “Perhaps Lessig’s own experience in Eldred left a chip on his shoulder toward the Supreme Court in general.”

    Or perhaps he’s reading the law as it stands, rather than as an advocate before a court?

  • http://weblog.ipcentral.info/ Noel Le

    ***As I argued in my DMCA paper, the courts were doing a pretty good job of applying copyright law to high-tech devices until Congress put its thumb on the scale with the DMCA.***

    Tim, allow the courts to do their job in setting DMCA precedence. One of the first things that came to mind in reading your paper is that the courts have no power to outline application of the DMCA.

    Have faith, grasshoppa…

  • http://weblog.ipcentral.info/ Noel Le

    ***I’m not sure if Lessig was really advocating for a greater role for Congress in the piece — but rather is just pointing out what he sees as inconsistencies in the SC’s rulings.***

    Lessig (and EFF) should stop filing cases just to make a point when they know their arguments are bogus…

  • http://bennett.com/blog Richard Bennett

    Lessig isn’t an honest advocate. The word “Google” didn’t appear in his Op-Ed, and there was likewise no mention of the ad revenue Google makes from illegal content on YouTube.

    His alleged preference for Congressional supremacy was a snide attack on the Court for ruling against his very weak argument in Eldred, and he closed by calling the Court “clever”, the criticism that thinking people use against Lessig, as in “too clever by half.”

    He’s no longer advocating a policy, he’s simply tilting at windmills.

  • http://bennett.com/blog Richard Bennett

    Lessig isn’t an honest advocate. The word “Google” didn’t appear in his Op-Ed, and there was likewise no mention of the ad revenue Google makes from illegal content on YouTube.

    His alleged preference for Congressional supremacy was a snide attack on the Court for ruling against his very weak argument in Eldred, and he closed by calling the Court “clever”, the criticism that thinking people use against Lessig, as in “too clever by half.”

    He’s no longer advocating a policy, he’s simply tilting at windmills.

  • Doug Lay

    I agree with Tim that Picker caught Lessig pulling a fast one this time. The Betamax doctrine is court-made law in the first place – it was (unfortunately) never codified. So there’s nothing contradictory about the Supreme Court deferring to Congress on the (terrible) decision to extend copyright law, while feeling free to tinker around the edges of the Betamax doctrine.

    Regarding Henry Miller’s comment – I agree that Congress is slowly becoming aware there are two sides to this issue. Last year, I sent my Congressman (a prominent CBC member for whatever that’s worth) a modified EFF email urging rejection of the Broadcast Flag. I wasn’t expecting anything in return but I got a well-written email describing his concerns with the Broadcast Flag’s possible impact on educational programming. It was a pleasant surprise, considering the guy doesn’t really need my vote (he won with ~80% in the last election). And look, here we are two years after the courts struck the Broadcast Flag down and Congress still hasn’t put it back in place.

    Finally, I’ve got a question, or maybe a challenge, for Tim. Tim has defended the Grokster decision in the past. I’d like to know what he thinks of the interpretation of Grokster that Epstein/Picker acolyte Doug Lichtman put forth in his L.A. Times op/ed piece. I think Lichtman’s interpretation is monstrous and comes close to defining a new category of thoughtcrime. I’d really like to know what Tim thinks.

  • Doug Lay

    I agree with Tim that Picker caught Lessig pulling a fast one this time. The Betamax doctrine is court-made law in the first place – it was (unfortunately) never codified. So there’s nothing contradictory about the Supreme Court deferring to Congress on the (terrible) decision to extend copyright law, while feeling free to tinker around the edges of the Betamax doctrine.

    Regarding Henry Miller’s comment – I agree that Congress is slowly becoming aware there are two sides to this issue. Last year, I sent my Congressman (a prominent CBC member for whatever that’s worth) a modified EFF email urging rejection of the Broadcast Flag. I wasn’t expecting anything in return but I got a well-written email describing his concerns with the Broadcast Flag’s possible impact on educational programming. It was a pleasant surprise, considering the guy doesn’t really need my vote (he won with ~80% in the last election). And look, here we are two years after the courts struck the Broadcast Flag down and Congress still hasn’t put it back in place.

    Finally, I’ve got a question, or maybe a challenge, for Tim. Tim has defended the Grokster decision in the past. I’d like to know what he thinks of the interpretation of Grokster that Epstein/Picker acolyte Doug Lichtman put forth in his L.A. Times op/ed piece. I think Lichtman’s interpretation is monstrous and comes close to defining a new category of thoughtcrime. I’d really like to know what Tim thinks.

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