Advanced Copyright Issues on the Internet - Fenwick & West LLP

Judge Posner, the Supreme Court in Sony was confronted with a situation in which the videorecorder “was being used for a mixture of infringing and noninfringing uses and the Courtthought that Sony could not demix them because once Sony sold the recorder it lost all controlover its use.” 1359Having characterized the Sony case thusly, Judge Posner turned to an application of itsprinciples to the Aimster service. He first rejected some extreme interpretations of thoseprinciples put forward by the parties. Specifically, he rejected the RIAA’s argument that Sony isinapplicable to services and that, where services are concerned, “the test is merely whether theprovider knows it’s being used to infringe copyright.” 1360 He noted that although knowledge thata service is being used for infringing purposes is a factor to be considered in contributoryinfringement, it cannot be dispositive, else services like AOL’s instant messaging service wouldbe illegal just because some use it for infringing purposes. 1361 Moreover, he noted that in theSony case, the Supreme Court acknowledged that 25% of Betamax users were fast forwardingthrough commercials, which, as noted, Judge Posner believed to constitute an infringing use, yetnevertheless there was no contributory infringement. 1362 Judge Posner thus concluded, “Wetherefore agree with Professor Goldstein that the Ninth Circuit erred in A&M Records, Inc. v.Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001), in suggesting that actual knowledge ofspecific infringing uses is a sufficient condition for deeming a facilitator a contributorinfringer.” 1363Conversely, Judge Posner rejected Aimster’s argument that any showing that its servicecould be used in noninfringing ways is sufficient to avoid contributory liability. “Were that thelaw, the seller of a product or service used solely to facilitate copyright infringement, though itwas capable in principle of noninfringing uses, would be immune from liability for contributoryinfringement.” 1364 In addition, the Supreme Court would not have thought it important to statethat the Betamax was used “principally” for time shifting. 1365Judge Posner therefore interpreted the Sony doctrine ultimately to require an economiccost/benefit analysis of the infringing and noninfringing uses of a system in determiningcontributory liability. “What is true is that when a supplier is offering a product or service thathas noninfringing as well as infringing uses, some estimate of the respective magnitudes of theseonly upon playback that the commercials were skipped by fast forwarding through them, and one would have toargue that the transient display produced on the television screen as the commercials run by at faster speed isitself a derivative work. And even if a derivative work, it is unclear why such work might not be a fair use, atleast when done by a private viewer to enhance enjoyment of the program.1359 Id. at 648.1360 Id.1361 Id.1362 Id. at 649.1363 Id. (citing 2 Paul Goldstein, <strong>Copyright</strong> § 6.1.2, p. 6:12-1 (2d ed. 2003)).1364 334 F.3d at 651.1365 Id. (emphasis in original).- 305 -