Picker on Lessig on Common Law Copyright

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.

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