cyckV4

380 COPYRIGHTABLE SUBJECT MATTER
Question:
1.) Boyle argues that the proposals that would have imposed strict liability on all internet
intermediaries—in part based on the logic of MAI, that even transient copies count as copies,
and copyright is a strict liability system—would have destroyed the internet as we know it.
ISPs, search engines, social media sites, cyberlockers—all would be liable for any
unauthorized copy on their systems, regardless of knowledge or volition. But would this not
have been the appropriate solution? After all, we impose strict liability on manufacturers
and sellers of products and hold them liable even where the defect that causes harm could
not have been detected or prevented. The theory is that they should internalize the loss and
that this will cause them to take appropriate safety precautions for those harms that can be
prevented and to pay for those harms that cannot. Why not here? Would this not have saved
the copyright industries from all the harm they have suffered from rampant downloading?
Notes
In the 2008 case Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008)
(often referred to as the “Cablevision” case – Cablevision was one of the defendants),
the Second Circuit limited MAI’s holding regarding fixation. As a reminder, the
Copyright Act defines fixation as follows:
A work is “fixed” in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority of the
author, is sufficiently permanent or stable to permit it to be perceived,
reproduced, or otherwise communicated for a period of more than
transitory duration.
The Cartoon Network court read this definition as follows: “We believe that this language
plainly imposes two distinct but related requirements: the work must be embodied in a
medium, i.e., placed in a medium such that it can be perceived, reproduced, etc., from
that medium (the ‘embodiment requirement’) and it must remain thus embodied ‘for a
period of more than transitory duration’ (the ‘duration requirement’).” It distinguished
MAI by finding that it only applied the first requirement: “We do not read MAI Systems
as holding that, as a matter of law, loading a program into a form of RAM always results
in copying. Such a holding would read the ‘transitory duration’ language out of the
definition, and we do not believe our sister circuit would dismiss this statutory language
without even discussing it.” Accordingly, it held that “buffering” the data that comprised
a movie or TV show for no more than 1.2 seconds did not create a fixed “copy” and was
therefore not a “reproduction” and not infringing. (“Buffering” temporarily stores data
while it is being transferred – you have seen it in action when the progress bar at the
bottom of your video inches ahead of what you’re watching.) In addition to amending
MAI, Cartoon Network also adopted Netcom’s volitional copying requirement, finding
that “volitional conduct is an important element of direct liability.” This allowed it to
hold that a DVR system was not subject to direct liability even when it made “fixed”
copies in the course of streaming video, because it was the customer ordering the video,
and not the system, that engaged in volitional conduct.