Feb 092013

The following case, Twentieth Century Fox v. Harris, is not a criminal matter.  But I want to include it here nonetheless in part because it’s important to talk about copyright policy generally, particularly given the increasing trend for it to be criminalized.  And in part because, in this case, hardly two weeks after I asserted that copyright infringement analogized more to trespass than to theft, a court in England independently reached the same conclusion.

From a copyright standpoint the case is interesting because it’s one that seeks to expand the doctrine of secondary liability beyond the way it had been conceptualized back when our copyright statutes were largely drafted. This is an English case, not an American one, but it’s generally true there as here that copyright law was initially developed at a time when content was as scarce as the physical media it appeared on. Controlling the exclusive right to copy was simply a matter of limiting the rather cumbersome physical process of copying it to only those with the specific entitlement to undertake that process. Making infringing copies would therefore have been a rather overt act, as would have been assisting someone in making infringing copies, and copyright law was generally able to easily identify and remediate those explicit and distinct physical acts.

But copyright law as initially developed didn’t contemplate the digital world we live in now, a world where the act of copying is contemporaneous with, incidental to, and often no more deliberate than consumption of content itself — an act that copyright law was actually supposed to ultimately encourage, not prohibit. I will save for other posts the discussion on whether the changes wrought by technology affect the traditional exclusive rights of authors in ways that are good, bad, or otherwise, or how the law should potentially be changed to respond to these new realities, but the main point I want to make here is that trying to apply a law written to address the physical world to a digital world often doesn’t work and leads to miscarriages of justice when people are held accountable for the kind of copying the law, as originally conceptualized, never could have anticipated.

In this case the MPAA has sought to hold liable the site Newzbin2, and who it claims its owners are, for the infringing copying it is alleged to have facilitated. Newzbin2 is a site that archives Usenet posts, Usenet being a precursor to the World Wide Web that served as a means of communication and information exchange among Internet users. The MPAA alleges that some of that information exchanged constituted infringing copies of its copyrighted works, and let’s assume for the moment that this allegation aptly describes what would be a truly and justly legally wrongful act. But the MPAA also alleges that anyone who in any way facilitates this exchange of content, even without the specific intent to cause a specific infringing copy to be specifically made, is also just as liable as whoever did the copying in the first place. Of course, even if you are tempted to see this act as wrongful in the same way as it would have been wrongful to help someone make an infringing physical copy of a copyrighted book, consider what is implied by this legal theory: in an era where copyright law has evolved to essentially apply to even minimally original expressions — in other words, nearly everything — without its author needing to lift a finger to register for a copyright or even notify the world that he claims a copyright, there is no communication or information anyone could safely intermediate the exchange of without running into secondary liability troubles for enabling its transfer. Moreover, it’s not just the sites such as Newzbin2 that could never serve as exchanges or archives; personal websites and even personal routers could be just as wrongful under such a legal regime. And that’s just silly. But the overall problem is no laughing matter, because the effect of such a regime is not just that infringing content would cease to be transmitted, but so would non-infringing content, for who would want to run the risk of facilitating the transfer of any content, particularly when it is so hard to tell whether it’s copyright-protected or not. And especially not given the crippling damages they might face as a result of getting it wrong.

Which leads to the particular legal question addressed by this ruling. At issue in this particular judgment was the question, assuming the MPAA is right and Newzbin2 had wrongfully facilitated the infringements of its copyright, of what remedy the MPAA was entitled to, and when. The MPAA alleged that the person it believes is Newzbin2’s owner made a lot of money out of infringing their copyrights, which he had then spent on his house, his car, etc. As a result, the MPAA argued, all these things should be theirs, and theirs right now, even prior to the actual trial evaluating the merits of their underlying copyright claims or taking any proper measure of what damages they might have actually incurred. The upshot to this argument is that, should it have prevailed, Newzbin2 and its putative owner would have lost the means to defend themselves against allegations that may not have, for the above described reasons and more, actually sounded in law (or at least not in a law that is just and reasonable and appropriately reflective of the modern technological age).

To make out its argument the MPAA tried to analogize Newzbin2’s alleged infringement with “the theft of a bag of coins.” In such a circumstance the coins would need to be kept separate and held in reserve for the owner to be able to reclaim them (according to English law, it was important to be able to recover those coins, which would not be possible if the coins had mixed with others and become untraceable before they were reclaimed). But the court denied the MPAA’s argument, reasoning, “The fruits of an infringement of copyright cannot, as it seems to me, be equated with the stolen coins.” While the owner of the coins would have lost his coins, here the copyright owner had retained title to its copyrights. No, thought the court, the damages remedy sought by the MPAA that might have suited a coin thief was not appropriate here. Particularly because “[a] copyright infringer is more akin to a trespasser rather than to the thief of the coins.”

The court then went on, explaining, “[A] landowner has no proprietary claim to the fruits of a trespass. A person who has profited from trespassing on someone else’s land may be ordered to pay what are sometimes called ‘restitutionary damages’ to the landowner[, and perhaps in some circumstances,] the landowner could claim an account of profits. The authorities do not, however, support the proposition that the landowner could assert a proprietary claim against the trespasser.” In other words, the landowner could not claim the entirety of the fruits as a trespass as his own, and certainly not at this stage of the game, with a proprietary injunction that would have stripped the defendant of all access to those fruits to defend himself, under penalty of criminal prosecution. (See defense counsel Jane Lambert’s blog post for a more detailed explanation of what a proprietary judgment is in English law.)

Continued the court:

“On [the MPAA’s] case, a copyright owner’s claim would not even be limited to the infringer’s profits: in principle, the entire proceeds of sale would be held on trust for the copyright owner. That might both be unfair and stultify enterprise. The proceeds of an infringement might be out of all proportion to the profits generated (e.g. because of the cost of raw materials used in the infringing product). It might not seem just for even a deliberate wrongdoer to have to pay the copyright owner the amount of his gross receipts, and an infringer need not have known that he was breaching copyright. Further, were [the MPAA’s] submissions correct, a person might be deterred from pursuing an activity if he perceived there to be even a small risk that the activity would involve a breach of copyright or other intellectual property rights. As was submitted by [defense counsel], that could have a chilling effect on innovation and creativity.”

Especially in the digital age.

Edit: For further analysis of the MPAA’s damage theory, see this excellent write-up by English lawyer Francis Davey.

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