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540 SECONDARY LIABILITY FOR COPYRIGHT INFRINGEMENT & SAFE HARBORS
album “ripped” from a CD into MP3 form (which would be a fair use, were the
original CD owned by the person doing the ripping). By the same token, it works for
any illicitly downloaded MP3.
You must tell your boss whether the iPod might violate the rules laid down in the
new Grokster decision, or the more traditional rules of contributory and vicarious
infringement. How do you advise? What factors inform your analysis? Would
you advise any changes to the product, accompanying service or advertising?
4.) Safe Harbors: Section 512, Direct Infringement and Secondary
Liability
Let us leave secondary infringement for a moment and turn back to direct
infringement. Having read MAI, which suggests that even transitory copies count as
copies for the purpose of § 106, and learned that copyright is a strict liability system,
which does not require bad intent, or even negligence, for liability, you may be wondering
why the entire internet is not illegal—or constantly subject to copyright suits for direct
infringement. After all, Google’s “spiders” copy the entire web every day in order to index
it. Much of the material Google copies was itself illicitly copied—though Google does
not “know” this when its spiders make copies. And those copies then sit on Google’s
titanic hard drives far longer than is needed to count as fixed; they are much more stable
than a RAM copy. Google does this “on purpose”—there is much more intentionality
about the copying than there was in the Netcom case. 100 hours of video are uploaded to
YouTube every minute: even though its digital fingerprinting and detection software is
now very good, and even though some unauthorized uploads would be sufficiently
transformative to count as fair use, that still leaves an enormous quantity of illicitly
reproduced material. Facebook has millions of users posting content, some of which is
illicitly copied (even if the users and Facebook sometimes do not know that). Dropbox
and every other cyberlocker can be used to store both licit and infringing material. Gmail
has billions of emails with infringing attachments passing through its systems, and sitting
in its hard drives, every year. Time Warner Cable, Comcast and AT&T provide internet
service to millions, and infringing material flows over those connections, and over the law
school network you may be on right now. The networks temporarily “cache” material to
speed up transmission. Some of the cached material is illicitly copied.
Why does this activity not make all of these intermediaries directly liable? (We
will come to their potential indirect or secondary liability in a moment.) In each of these
cases, the intermediary is making copies, on its own system, of infringing material. Is the
whole internet somehow protected by Netcom, a single District Court decision that took
a “creative” interpretation towards the law of its own circuit? (Revisit the Netcom
decision from Chapter 12 to understand why we say that.)
The answer to this question is that, initially, it was the US government's official position
that all these entities should be—indeed already were—strictly liable without any
change in existing law, simply because of the combination of a broad conception of fixation
and the fact that copyright was a strict liability system. As of 1995, the USPTO was saying
that strict liability for internet intermediaries was a feature, not a bug. This is the way
copyright infringement would be policed, just as products liability imposes strict liability
on product sellers and then lets them decide how to keep their level of liability down.
Why did this not come to pass? The Digital Millennium Copyright Act—or more