Sony

Copying for Private Use

True, Sony Corp. v. Universal City Studios, Inc. wasn't decided within the last decade. However, I mention it here because it was the beginning of many turns the courts took in later copyright-issue cases. Anyone teaching rhetoric and writing in the digital age needs to know the outcome of Sony in order to be aware of the history of "details, affordances, and infrastructural possibilities" (WIDE, 2005) related to digital copyright. What kind of copying are we allowed to do? Can we copy anything as long as it is for private use? How has the political climate changed during the last ten years with respect to the reproduction and distribution of texts?

Sony Corp. manufactured and marketed through retail establishments the purchase and use of home video tape recorders (VTR's). The owners of copyrights on some of the television programs that were broadcast on the public airwaves sued Sony, alleging that VTR consumers had been recording some of the owners' copyrighted works. The copyright owners alleged that Sony both infringed on copyrights because of the taping by consumers and because of its marketing (i.e. distribution) of the VTR's.

The lower, District Court held that there was no infringement: recording of material broadcast over the public airwaves was a Fair Use of copyrighted works and did not constitute copyright infringement. Here one must pause and think about how this decision has changed during the last ten years. Obviously, based on the court cases of Napster, Aimster, and Grokster, courts no longer hold that broadcasting over a public medium such as the Internet allows consumers to record under a blanket permission of Fair Use. The courts have become more protectionist against the average consumers' ability to save publicly broadcast information.

The Court of Appeals reversed the District Court's finding of no infringement, holding Sony liable for contributory infringement. In 1984 the Supreme Court finally held that the production and marketing of VTR's and consumers' subsequent recording of TV shows did not constitute contributory (contributory because Sony didn't directly record the TV shows, but marketed and supplied the device that was used to infringe) copyright infringement.

Key points of the case (picked up in later cases) are as follows:

• Any individual may reproduce a copyrighted work for a "Fair Use"; the copyright owner does not possess the exclusive right to such a use. Private taping (copying) or time-shifting was a Fair Use.
   
• Supplying the "means" to accomplish an infringing activity and encouraging that activity through advertisements is not in and of itself necessarily sufficient to establish liability for copyright infringement. (Yes, Sony knew consumers could infringe on copyrights with the VTR, but the court did not hold Sony responsible -- contrast this to the holding in Grokster). 
  
• The sale of copying equipment, like the sale of other articles of commerce (relying on patent law's staple article of commerce doctrine), does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses. (a determination made by a rhetoric of counting). (In Grokster, the court did not overturn Sony's safe harbor of substantial noninfringing use, but instead added a second level of concern--that of whether the technology distributor "induces" others to infringe.)
  
• The court found important that there was a significant likelihood that substantial numbers of copyright holders who licensed their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers (i.e., recorded at a time when the VTR owner cannot view the broadcast so that it can be watched at a later time). The term "time-shifting" is important because in a later filesharing case, Napster tried to argue that their service was only "space-shifting," an argument the court did not buy.
  
• The Supreme Court in Sony deferred to Congress. This is not the case in Napster, Aimster, and Grokster. The court increasingly began to craft its own solutions to technological-innovation challenges to copyright law. Politically, we must ask if this is right. Should the court be "making law" in this fashion, considering that US democracy sits on the notion of separation of powers? Throughout the history of US case law, courts struggle with how much copyright protection can be permitted to expand when the existing law is presented with new technologies.
  
  In Sony, the court decided such an expansion of the copyright privilege was beyond the limits of the grants authorized by Congress. The court, importantly, defers to Congress, stating that it is up to Congress to expand copyright in light of developing technology. As the years go by, we see courts systematically not deferring to Congress, such as in the Napster and Grokster cases, but instead, doing what some might call legislating from the bench.
  
  Note that the US Intellectual Property Clause, Article I Section 8 gives Congress the authority "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Lawrence Lessig as well as several Berkman law professors, Samuelson law professors, and others all take the position that Congress should craft new law for the issues that arise as intellectual property flows through digital spaces (Band, 2005).
  
  Back in 1984, the Sony court noted that "Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology."
  
• The court found important the fact that most uses of the VTR's were not infringing. But the Sony court called up doctrines from patent law, including the doctrine of inducement: "In contrast, the [464 U.S. 417, 435] Patent Act expressly brands anyone who 'actively induces infringement of a patent' as an infringer, 35 U.S.C. 271(b), and further imposes liability on certain individuals labeled 'contributory' infringers,' 271(c)." As the court said this, it noted the historic kinship between patent law and copyright law. This connection was invoked in the Grokster (2005) case which added a second level (inducement) to Sony's safe harbor of "substantial noninfringing" use. So the reliance of current courts on precedent set in patent law (and copyright law) is in contradiction to Lawrence Lessig's argument that cyberspace as a "sovereign" place needs a whole new set of laws, rather than continuing reliance on existing laws. In other words, when confronted with a problem caused by new technology, the court looks to patent law for guidance in a copyright decision, rather than asking Congress to craft new laws appropriate for digital spaces and the ensuing issues.

For more information see: Sony Corp. of Am. v. Universal City Studios, Inc. (1984).