AALS Annual Meeting, Section on IP, part two

The Direct and Indirect Infringement Issues Surrounding P2P: Sharing or Piracy?

Wendy Gordon: Gordon had problems with both the outcome and the intent standard of Grokster. She also tied her Grokster comments into a more general point about copyright's attitude towards putting people into others' shoes.

What is the meaning of decentralized networks? (1) From a copyright perspective, this network will never be fully integrated into a pay-for-play system. (2) From a democratic perspective, there is a legitimate fear of regimes strong enough to keep us separate and powerless using technology (my note: see, e.g., Chinese filtering). Samizdat was an example of decentralized distribution of dissent. We should frame our laws to avoid the biggest disasters, such as a situation in which it's too easy for a central group (government or not) to know what we're doing and nip dissent in the bud. This is what's important about technical capabilities: the future is a long time, and even if the tech is used to share top 40 songs now, it won't necessarily always be. (My note: music can be political, too, from campaign songs to today's Christian music, some of it put on P2P networks by believers trying to spread the Word.) We need these capabilities on people's computers long before repression materializes, or it will be too late.

Grokster took a bite out of Sony's safe harbor, since if there's inducement the fact that a technology is capable of substantial noninfringing uses is irrelevant, as Breyer's concurrence agreed. Tim Wu says the Court naturally steered a middle ground, being warned of apocalypse if it affirmed and if it abandoned Sony, but the middle ground does not avoid tradeoffs. Gordon thinks that the possibility of political domination outweighs a downturn in copyright revenue (which she thinks is not huge, since with a vastly increased world market, the percentage of value that needs to be recaptured to support the content industry is lower than it used to be and distribution costs are also decreasing). Political liberty is simply not fungible with revenues for copyright owners.

Gordon finds the Grokster intent standard weird because the copyright statute is strict liability generally. The law tries to further consequential aims, not to prohibit bad acts by free-riders (cf. Feist's statement that allowing free riding for unprotected elements is a deliberate part of the statutory/constitutional scheme). If we allow morally bad actors to go free in direct liability cases, adopting a moral test for contributory infringement is overbroad; also, it's not necessarily a moral wrong to help a group of people, some of whom are not committing wrongful acts.

Further, it's not always true that intent governs the moral evaluation of outcomes. Gordon gives the examples of Joseph's sale into slavery in Egypt and the invention of the internet as a warfighting technology. Sometimes, though, using intent to screen for liability makes sense even if we're not concerned with morals: (1) intent can be a proxy for the likelihood of success in causing harm; (2) intent relates to deterrence, since knowing or intentional acts are easier to deter than unknowing or unintentional ones; (3) intent may signal a higher private benefit; (4) intent may indicate a sadistic/exploitative mental state that has no social value; (5) an intent standard avoids some steering-clear costs by risk-averse folk that would be caused by strict liability; (6) intentional acts sometimes cause more harm to victims who know of the intent than unintentional ones; and (7) in copyright specifically, intent may be a proxy for bad/uncreative use of copyright. Note that many of these reasons compare an intent standard to a broader liability standard; they may not justify the existence of liability in the first place.

And, of course, intent can be difficult to discern and thus lead to more liability. Gordon referred to Grokster's famous footnote 12 -- Warhol said everyone would be famous for fifteen minutes, but instead everyone and everything is famous to fifteen people -- which says that, in the absence of other evidence, there can be no liability merely from failure to affirmatively control infringing acts. But Gordon thinks that limiting footnotes have rarely been taken up by the courts in copyright cases, giving the example of the Campbell footnote that suggests that courts should not issue injunctions in close transformative use cases. (I'd add the Campbell footnote saying that satire can indeed be fair use even if it's not as favored as parody, another footnote that has been much ignored.)

Finally, Gordon returned to the issue of standing in another's shoes. In fair use, you can't assert the fair use rights of the person for whom you're acting, as when a copy shop makes copies on behalf of students. This makes sense, she said, because the economic effects of different actors are different. In practical terms, more copying will be done when the copy shop does it than when individual students do it. (Though I have to wonder -- if this is true, is it really evidence of market harm or evidence that a licensing right is of more value to the copyright owner when copy shops show up? Probably most of that copying wouldn't have gotten done at all without the copy shop, but it probably wouldn't have been replaced by purchases of the materials -- the students just wouldn't have read the works or would have gotten them from the library, if the instructor had assigned them at all, which is less likely in a world without easy copying.) Anyway, Gordon suggested that the copyright rule was inconsistent with corrective justice, which says you look at acts and not identities, and that Grokster increased the tensions in copyright law on this point. (Is it really the same act when the copy shop copies for profit for someone else's use and when the student copies for her own education? It's been a long time since Jules Coleman's torts class.)