Imagine an author. She has a spark of inspiration and sets out developing a story. Characters are sketched out. Index cards bearing plot points are written up, arranged, and rearranged. As the story takes shape, she calls in her assistant, who, sitting at a computer, types in the first draft of the story as the author dictates.

Now, we ask, who has written the story?

Common sense would tell us the author, of course, has written the story, and few would dispute that answer. But in the strictest, technical sense, if we define “to write” narrowly enough to mean only the last act between thought and word on page, the ministerial act, it is the assistant who wrote the story, by typing it out.

Beyond semantics, that narrow definition is not particularly useful. Only the trivia buff would be interested in the participation of the assistant; most of us want to know who the author was, who is responsible, in the real sense, for the story we are reading. We don’t need a million monkeys to know that the process of writing is more than tapping on a keyboard.

In recent decades, due to technology, copyright law has increasingly had to deal with a similar question. Because copyright law is concerned primarily with the act of copying, some courts have had to ask who has made the copy. When a copy has been made without authorization, who is the author of the infringement?

This question becomes most palpable when we start talking about what I will refer to as “copy machines.” These include literal copiers like photocopiers, tape recorders, or DVRs, as well as virtual copy machines—computing processes, both on local devices or working within the cloud. The problem is that some courts have adhered to the strict technical sense of words and defined “to copy” so narrowly that it doesn’t correspond with the common sense definition.

Aereo

The Supreme Court is set to hear oral arguments in American Broadcasting Companies v. Aereo on April 22. The question of who “caused” the infringement is raised by Aereo in its brief, though the issue was not addressed by either the district or appellate courts below. However, it does cast a long shadow over the proceedings. Some commenters have raised the fear that the entire fate of the cloud computing industry rests on the Supreme Court’s decision (this year’s iteration of “copyright will break the internet,” I suppose).1

This argument is unsound for at least two reasons. First, the Cablevision decision, upon which Aereo relies on, only applies within the Second Circuit, so the fact that cloud computing has flourished in other parts of the US, and throughout the world, suggests the decision is not the panacea Aereo supporters claim it is.2 Second, service providers already have safe harbor from liability for infringing activity stemming from user-directed storage.3 So any protection Supreme Court affirmation would provide would largely be redundant.

Nevertheless, US case law has yet to fully develop a satisfactory answer to the question of who “makes” a copy, and it is safe to say the issue will maintain its prominence in the near future. In this article, I want to take a look at this case law to see how courts have approached the question, which is not a novel question in the law. Particularly, I look at the emergence of the “volitional conduct” test to mediate disputes over direct liability on the internet. I note that most often, this test resembles the legal doctrine of proximate causation and argue that ditching volitional conduct entirely in favor of a more direct focus on proximate causation would offer more clarity and better results. I finish by sketching out what a proximate causation inquiry might look like.

Copying, causation, and volition in the courts

Prior to the popularization of the internet, a handful of cases examined the contours of liability for those who make, own, or operate copy machines utilized by others.

Make-A-Tape

In 1973, a court considered a chain of electronics stores operating “Make-A-Tape” machines.4 Customers could select an album from the store’s catalog, purchase one of the blank tapes sold by the store, conveniently receiving as change the two quarters required to operate the machine, and start the “Make-A-Tape.” Within two minutes, the customer could leave the store with a perfect copy of the album at a fraction of the cost.

The Eastern District Court of New York did not delve too deeply into the question of causation, but it did conclude that “Regardless of the precise role played by defendants’ employees, the above-described operation of the Make-A-Tapes clearly evidences their commercial exploitation by defendants for profit in derogation of plaintiffs’ rights of exclusive publication.”

The defendants attempted to escape direct liability by focusing the court’s attention on the self-service nature of the copiers and their resemblance to “a photocopier in a public library.” This did not convince the court, which focused on the differences in time, quality, and cost of reproducing entire works on a photocopier compared to the Make-A-Tape machine. It also pointed out the non-profit nature and altruistic motives of a library, which differ from how the defendants “manifestly utilize the Make-A-Tape as a further source of income.”

Sony Betamax

The issue of who makes a copy did not, apparently, come in front of courts again for another six years, in Universal City Studios v. Sony Corp. of America. The Supreme Court’s decision regarding the secondary liability of a Betamax manufacturer is considered a cornerstone of modern copyright jurisprudence. But little attention is paid to the fact that, years before the highest court would consider indirect liability, the district court considered whether Sony should be directly liable for infringement of Betamax users.

The district court noted that “It is true that one can be found to have infringed directly even without participating in the actual infringing activity.” But the court ultimately held Sony could not be directly liable for copying occurring on the machines it designs and distributes for a number of reasons.

First, Sony does not “loan or otherwise provide the copyrighted work” that is being copied. Second, the copying does not occur on premises “operated and managed by the defendants but rather in a person’s home, a location in which individual privacy is constitutionally protected and over which defendants have no control.”5 Finally, the Betamax players aren’t solely used for unauthorized copying; they have a range of uses and can be used for noninfringing purposes.6

Kinko’s

Print shop Kinko’s would find itself in court in the early 90’s, the subject of an infringement complaint for operating a “course packet” service—college professors would provide nearby Kinko’s with selections and chapters from original copyrighted works that had been assigned to students, and Kinko’s would duplicate and assemble the materials into anthologies that they would then sell to students.7

There was little argument that Kinko’s was “making” the copies. However, when it came to assessing damages, Kinko’s argued that it was acting as an agent of the professors’ college since “Section 504(c) provides that the court ‘shall remit statutory damages … where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use …, if the infringer was (i) an employee or agent of a nonprofit educational institution….’ 17 U.S.C. § 504(c)(2).”

The court rejected this argument, saying there was no evidence of an agency relationship between Kinko’s and the university, and Kinko’s was unable to show that “the professors exerted a sufficient level of control over the relationship.”

Frena

Finally, one of the earliest cases involving copyright liability in the online context saw a bulletin board system (BBS) operator liable for directly infringing public display and distribution rights.8 Though there was only brief discussion in Frena, the court did say, “There is no dispute that Defendant Frena supplied a product containing unauthorized copies of a copyrighted work. It does not matter that Defendant Frena claims he did not make the copies itself.”

Netcom

And then came Netcom. In 1995, the Northern District Court of California was confronted with the question of copyright liability for an internet access provider based on infringement occurring on Usenet groups.9 Usenet is a decentralized communications system consisting of thousands of “newsgroups” where users can read and post public messages. Internet access providers can set up a Usenet server to become part of the system and allow their subscribers to interact with Usenet, but the system otherwise functions independently from any one internet access provider—indeed, it operates independently from any individual or entity.

A critic of the Church of Scientology had posted a number of unpublished and published works, without permission, of Scientology founder L. Ron Hubbard to a religion newsgroup. The copyright holders of the works sued for copyright infringement, naming the critic who uploaded the works, the operator of the BBS where the works were uploaded, and Netcom, which provided internet access to the BBS (and, by extension, to the critic). Netcom moved for summary judgment on the issue of its own direct liability.

The court granted the motion, saying “Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.” The court described the copying done by Netcom as “automatic[] and uniform[]” and its actions as “necessary to have a working system for transmitting Usenet postings to and from the Internet.” Thus, “the mere fact that Netcom’s system incidentally makes temporary copies of plaintiffs’ works does not mean Netcom has caused the copying.”

Netcom would serve as the stepping off point for analyzing direct liability online. Nearly every subsequent case where the issue of direct liability for the owner or operator of a copying service or platform arose refers to the case.

But while these courts agree that Netcom said direct liability requires some form of “volitional conduct”, there is little agreement over what that means.

After Netcom

The Fourth Circuit adopted Netcom in CoStar Group v. LoopNet, saying

to establish direct liability under §§ 501 and 106 of the Act, something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner. The Netcom court described this nexus as requiring some aspect of volition or causation.10

However, the language of CoStar, rather than describing a general causation principle, suggests that it was laying down a blackletter rule that “an ISP who owns an electronic facility that responds automatically to users’ input is not a direct infringer.” A subsequent, unpublished Fourth Circuit opinion lends credence to this notion; in Quantum Systems Integrators v. Sprint Nextel, the court quoted CoStar‘s holding “that ISPs, when passively storing material at the direction of users in order to make that material available to other users upon their request, do not ‘copy’ the material in direct violation of § 106 of the Copyright Act” and rejected defendant’s argument that it was shielded from liability under this rule in part by pointing out that it was not engaging “in ‘conduct typically engaged in by an ISP.'”11

In Cartoon Network v. CSC Holdings (“Cablevision“), the Second Circuit adopted Netcom, holding that copies produced by a cable provider’s remote DVR (RS-DVR) system are “made” by the cable provider’s customers, and the cable provider’s contribution of providing the system doesn’t warrant the imposition of direct liability.12 Unlike CoStar, Cablevision didn’t read Netcom as establishing a rule for analyzing the liability of ISPs—indeed, Cablevision operated a sui generis service wholly separate from the Internet. Instead, Cablevision read into Netcom a distinction between human acts and technical processes, with only the former supplying the necessary “volition” for direct liability. “In determining who actually ‘makes’ a copy,” said the Second Circuit, “a significant difference exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.”

The Cablevision court never explains exactly what this difference is or why it is so significant. (Indeed, this statement seems contrary to the Fourth Circuit’s claim in CoStar that employee review of images before they are posted “tends only to lessen the possibility that LoopNet’s automatic electronic responses will inadvertently enable others to trespass on a copyright owner’s rights.” As noted later on, some courts have been too quick to read causation out of the design of automated processes.)

Other cases have taken the same view as Cablevision and held that Netcom stands for the proposition that the design of automated technical processes is never causational. Some courts describe this rule as saying the lack of human intervention means there is no volitional conduct.13 But that is not entirely true. Humans certainly intervened, volitionally, to design the system and maintain and operate it. So, contrary to how courts here have described it, it is more accurate to say this permutation of the “volitional conduct” test limits direct liability when there is no human intervention contemporaneous with the moment a copy is initiated.

Finally, some courts have interpreted “volitional conduct” as roughly synonymous with the general tort principle of “proximate causation.”

At least one court has explicitly called attention to this resemblance. “Notwithstanding these sound decisions, the concept of ‘volition’ can be confusing,” said the Central District Court of California. “‘Volitional’ is sometimes understood to mean ‘intentional,’ and yet no showing of intent is required for direct infringement liability. In this Court’s view, the key to understanding the so-called ‘volitional conduct’ requirement is to equate it with the requirement of causation, not intent. ‘Just who caused the copyrighted material to be infringed?'”14

And the Ninth Circuit seems to have implicitly taken the position that volitional conduct is equivalent to proximate causation.

In Fox Broadcasting Co. v. Dish Networks, satellite TV provider Dish was sued, in part, for unauthorized copying of television programs made through its PrimeTime Anytime Service (PTAT). When enabled by a subscriber, PTAT automatically recorded all primetime programs from the four major broadcasters and made them available on the subscriber ‘s DVR. Dish argued that its subscribers should be the ones exposed to liability because they, not Dish, “made” the copies.

The Central District Court of California agreed with Dish. On a preliminary injunction motion, the court said Dish was likely to prevail on the merits, relying primarily on the holdings of Netcom and Cablevision that require some element of “volitional conduct” for direct liability.

The decision was appealed, and the Ninth Circuit affirmed. But there’s something curious about the opinion. The Circuit does not once mention volition, nor does it cite to the granddaddy of volitional conduct, Netcom (though it does cite approvingly to Cablevision). Instead, it said simply that direct liability “comprises a requirement that the defendant cause the copying.” (Emphasis added). In addition, the court repeats the lower court’s quotation to Prosser’s recitation of the proximate causation inquiry.15 At least one district court within the Ninth Circuit has since suggested that the Circuit had yet to adopt the “volitional conduct” test.16

In short, it is not remarkable to say “that the principle of volition has been applied inconsistently and is not always well understood.”17 The above discussion demonstrates that, since Netcom, at least three versions of the “volitional conduct” test have emerged (four, if you count cases where its application was declined entirely).

I think the last view—that volitional conduct is merely a substitute for proximate causation—is correct, and that the different terminology has led courts astray. Focusing on proximate causation instead of volitional conduct would provide better results. To see why, let’s take a closer look at proximate causation.

Proximate Causation and Copyright

Copyright infringement is a strict liability tort. Knowledge or intent are not required for copyright infringement.18 But infringement does require, like all torts, some element of causation, an act that results in the harm. Causation is typically divided into factual (“but for”) causation and “proximate” causation. Put another way, did the act actually cause the harm and, if so, should the law, as a matter of policy, hold the actor liable for causing the harm.19

Factual causation is not typically difficult to establish since it is such a broad concept. Proximate causation, on the other hand, is an entirely different story. It is not a philosophical or scientific question, but a legal one.

“What we do mean by the word “proximate” is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.”20

The factual causes of any occurrence are seemingly limitless. One could trace forever the chain of events that lead to a specific harm, but it has long been recognized that there is little sense in extending legal responsibility throughout those chains. The chief mechanism animating this recognition is proximate causation. Proximate causation is a limiting theory about the “specific qualities that an agency must possess in relation to the outcome in order to be its cause in law.”21 As Chief Justice Roberts has said, proximate cause “limits liability at some point before the want of a nail leads to loss of the kingdom.”22

Justice O’Connor, in a case concerning causation under an environmental statute that is silent on the issue, explains how proximate causation is an element of all strict liability torts and roughly sketches its contours and purpose:

Strict liability means liability without regard to fault; it does not normally mean liability for every consequence, however remote, of one’s conduct. I would not lightly assume that Congress, in enacting a strict liability statute that is silent on the causation question, has dispensed with this well-entrenched principle. In the absence of congressional abrogation of traditional principles of causation, then, private parties should be held liable under § 1540(a)(1) only if their habitat-modifying actions proximately cause death or injury to protected animals…

Proximate causation is not a concept susceptible of precise definition. It is easy enough, of course, to identify the extremes. The farmer whose fertilizer is lifted by a tornado from tilled fields and deposited miles away in a wildlife refuge cannot, by any stretch of the term, be considered the proximate cause of death or injury to protected species occasioned thereby. At the same time, the landowner who drains a pond on his property, killing endangered fish in the process, would likely satisfy any formulation of the principle. We have recently said that proximate causation “normally eliminates the bizarre,” and have noted its “functionally equivalent” alternative characterizations in terms of foreseeability, and duty, Proximate causation depends to a great extent on considerations of the fairness of imposing liability for remote consequences. The task of determining whether proximate causation exists in the limitless fact patterns sure to arise is best left to lower courts.23

O’Connor notes the role of fairness in the proximate causation inquiry; other commenters point out the role of justice, blame, and moral responsibility. Some common policy questions underlying proximate causation include “indications of preconceived purpose, specifically intended consequence, necessary or natural result, reasonable foreseeability of result, the intervention of independent causes, whether the defendant’s acts are a substantial factor in the sequence of responsible causation, and the factual directness of the causal connection.”24

Proximate causation is often tied to our expectations. “One connotation of proximate cause is that harm came about in a ‘direct’ or expected way, rather than in an unusual, freakish manner.” In addition, liability may not be found “because of lack of proximate cause in the sense that the accidents are coincidental to defendants’ behavior, unrelated to the normal risk created by their behavior.”25

Finally, proximate causation contains a recognition that liability must necessarily cut off. “At some point in the causal chain, the defendant’s conduct or product may be too remotely connected with the plaintiff’s injury to constitute legal causation ”26

If we revisit the Netcom decision through the lens of proximate causation, we can easily see that the court was considering the same policies. For instance, it considers the consequences of placing liability on the defendant when it notes that holding Netcom liable “would create many separate acts of infringement and, carried to its natural extreme, would lead to unreasonable liability.” It looks at whether the defendant’s acts are a substantial factor in the sequence of responsible causation and the magnitude of the burden of guarding against it when it says holding Netcom directly liable “would hold the entire Internet liable for activities that cannot reasonably be deterred.” The court is, in other words, demonstrating reasons it should limit Netcom’s legal liability despite its factual role in causing the copying.

That is to say that when Netcom says direct liability requires “some element of volition or causation”, it is referring primarily to the latter, not the former. Read appropriately, Netcom means “proximate causation” when it says “volitional conduct”.

If we agree that the “volitional conduct” test and proximate causation are largely synonymous than we can, and should, ditch any talk of “volitional conduct.”

This is preferable for a number of reasons. For one thing, the “volitional conduct” test provides no advantage over a proximate causation inquiry.

Saying direct liability requires volitional conduct is redundant. The second Restatement of the Law on Torts says that an intentional tort requires an “act”. It defines an “act” as “an external manifestation of the actor’s will” and notes “there cannot be an act without volition”. So to say that copyright infringement requires a volitional act is simply to repeat the obvious and doesn’t get us far. It is like saying we have a right to “free speech on Tuesdays.”27

And, in fact, it puts courts and litigants at a disadvantage. Calling proximate causation “volitional conduct” adds little or no clarity or guidance to the test and only further masks the policies that drive proximate causation analysis in the first place.

Proximate causation itself is already a proxy for an unspecified set of policies that underlie law. By skipping over analysis of proximate causation, courts miss the opportunity to be informed by those policies. At the same time, there have been little or no underlying policies that have emerged as guidance since Netcom for applying the volitional conduct test.

At its core, the question of who “makes” a copy when we are dealing with owners, operators or other intermediaries of copy machines is this: at what point do we circumscribe legal responsibility for parties who are factual causes of a copy. That is precisely the type of question that proximate causation seeks to answer.

One initial result of this decision is that courts need to take care in per se rules regarding automated processes. In a world with self-driving cars and computers that can play chess, it should be apparent that the mere fact that an act occurs via an automated function that can operate independent of the operator should not preclude the operator or programmer of the function as a causal agent of the consequences. Whether an automated process is a causal agent of the operator is a question of fact, but surely the design or programming of a process is, in the language of tort law, an external manifestation of the programmer’s will.

Indeed, you rarely see cases outside the copyright context reflect this sort of thinking. For example, just last month, a federal court held that search engine results are protected by the First Amendment. During its analysis, the court stated that “the fact that search-engine results may be produced algorithmically” is irrelevant. “After all, the algorithms themselves were written by human beings, and they ‘inherently incorporate the search engine company engineers’ judgments about what material users are most likely to find responsive to their queries.'” It would be weird to say the results of an automated process can be considered protected speech attributed to the operator of the system employing that process, unless they are infringing, in which case they are not attributable to the operator. And indeed, at least a few courts have bucked the trend and found the design of automated processes indicative of causation.28

Analyzing Proximate Causation

The ultimate conclusion here is that using proximate causation to answer the question of who makes a copy is sound. It is superior to the ill-defined “volitional conduct” test that some courts have used and should provide better guidance for courts to reach preferable outcomes. So what would a proximate causation analysis look like?

A full dissertation on proximate causation of copying online is beyond this article, but I think it is still worth attempting to trace out some rudimentary factors that courts might consider.

Since we are concerned with who makes a copy, it makes sense to focus much of our attention on the various steps and elements needed to create a copy. For example:

1) Location of equipment

Location is important, just as it is in most areas of the law. This is not so much a question of geography, but rather over the nature of the place, particularly who has dominion over the premises. Saying, as Aereo has, that the only difference between it and a personal antenna is the “length of the cable” is as inaccurate and meaningless as saying the only difference between my apartment and the Italian restaurant down the street is the amount of steps I have to take to get there. There are, it turns out, quite a few other differences, most far more relevant to any legal issue that may arise. I would point out that I am not as convinced as some courts are of the analogy between a self-service copy machine and that same machine in someone’s home. The copy machine in someone’s home is reserved for their use and so the amount of copying is necessarily limited. But the copy machine at a business is open to a potentially continuous stream of people coming to copy.29

How has this factor been handled by courts? On the one hand, there is little weight given to the fact that copying equipment is on a defendant’s premises—in fact, CoStar expressly exempts the housing and automated operation of copying equipment without more from direct liability. On the other hand, when the copying equipment is outside a defendant’s dominion, courts tend to view defendant’s participation as too remote for direct liability.30

2) Provision of copyrighted work

Implicit in many cases relying on Netcom is the fact that the services play a “hands-off” role in the copying, acting as a conduit or providing instead a platform for users to make their own copies—from their own original works.31 It makes less sense to limit liability for causing a copy when a service is providing the user with the work to be copied.

Even Cablevision, which found no direct liability for the provider of a remote DVR service, grudgingly admitted this point. The Second Circuit there said Cablevision’s “unfettered discretion in selecting the programming that it would make available for recording… is indeed more proximate to the creation of illegal copying than, say, operating an ISP or opening a copy shop, where all copied content was supplied by the customers themselves or other third parties.”

Courts should be skeptical of attempts by services to argue they are formally not the provider of a work despite functionally providing those works. One example of this can be seen in Columbia Pictures Industries v. Redd Horne.32 Defendant there, sued for infringing plaintiff’s public performance rights for operating viewing booths in its video rental store premises, argued that it was protected by the first sale doctrine. That is, since it had rented the video tapes to its customers, it was no longer responsible for any performances that resulted. The court rejected this argument outright, saying that the first sale doctrine only circumscribes a copyright owner’s control over further distributions. It does not operate as a waiver to a copyright owner’s other exclusive rights such as the public performance right.

But the court also noted that defendant’s argument elevated form over function. “The record clearly demonstrates that showcasing a video cassette at Maxwell’s is a significantly different transaction than leasing a tape for home use. Maxwell’s never disposed of the tapes in its showcasing operations, nor did the tapes ever leave the store. At all times, Maxwell’s maintained physical dominion and control over the tapes.”

Citing to Redd Horne, the court in Warner Bros. WTV Systems rejected a similar argument. There, defendant had built a convoluted internet streaming service where films were kept on DVDs and played on DVD players before being transmitted to user’s computers, rather than storing the digital files on a server. It argued that this set-up made it a service that offered “DVD rentals” rather than public performances, thus taking it outside the scope of copyright law. But, as in Redd Horne, the court found the DVDs remained under physical dominion and control of defendants, and did not resemble a DVD rental service.

3) Participation in copying process

How materially did the defendant participate in the copying process? This is one of those questions that can either threaten to swallow every other consideration or become redundant and act as a sort of meta-factor in the analysis. But I think case law does offer some guidance that can help shape this element into something meaningful and useful.

One example can be found in distinctions between cases involving Usenet services—interestingly, Netcom and a surprisingly large percentage of volitional conduct cases have dealt with Usenet. And, like Netcom, the majority have found that causation “is lacking where a defendant’s system is merely used to create a copy by a third party.”33 But at least one Usenet service had been found directly liable by a court, and the differences with that service are illustrative here.

In Arista Records v. Usenet.com, the court found, unlike other Usenet services, the defendant engaged in direct infringement by doing the following: it took active measures to create servers dedicated to mp3 files and increased retention time of those files knowing they were most popular content on service, it took active steps including automated filters and human review to remove access to certain categories of content and block certain users, and it routinely exercised control over which newsgroups to accept and store and which to reject.

Each of these steps make Usenet.com more directly a cause of the resulting unauthorized copying. Usenet.com’s actions make infringement a more likely and natural result, thus weakening the claim to limit Usenet.com, a “but for” cause of infringement, as a legal cause of infringement.

A second example of a court examining the participation of a defendant in the copying process is found in Capitol Records v. ReDigi, involving a service purportedly allowing “used” digital music files to be sold. Here the court found it relevant to direct liability that the defendant built a service where only copyrighted work could be sold, despite being automated. It also played a “fundamental and deliberate role” in distribution, including providing infrastructure for users’ infringing sales and affirmatively brokering such sales by connecting interested users with available sellers.

Third, one court said a filelocker could face direct liability for the following reasons: it designed and maintained a system that allows uploading and downloading; it created distinct websites, presumably in an effort to streamline users’ access to different types of media; it encouraged and, in some cases paid, its users to upload vast amounts of popular media through a reward program; it disseminated URLs for various files throughout the internet; it provided payouts to affiliate websites who maintain a catalogue of all available files; and, at a minimum, it was plausibly aware of the ongoing, rampant infringement taking place on its websites.34

Finally, by way of contrast, the district court in Sony explained a situation where a defendant’s participation was too attenuated to support direct liability. As noted above, the manufacturer of the Betamax maintained no role in copying once the device was sold to a customer and taken to his home. The sale severed all ties with the customer, the device, and any resulting copies.

What can be gleaned from these cases is that evidence that a service provider has not taken a “hands off” or passive role in operating a copying system will defeat limitation on direct liability. That evidence may take the form of intent, purpose, expectation, or ex ante knowledge.

4) Range of uses of “copy machine”

Closely related to the participation in the copying is the range of uses of a copy machine. A defendant who designs a system that is good for nothing but making infringing copies is very proximate to the resulting infringement. The operator of a service with substantial non-infringing uses—a true general-purpose system—is less so. The range necessary narrows as a defendant’s participation in process attenuates—so only devices which are good for pretty much nothing but infringement would give rise to liability as articles of commerce to the manufacturer.35 Essentially, this factor asks how probable the occurrence of infringement is due to the design of a defendant’s system.

Some courts and commenters single out the “unusual result” as demonstrative of causation, the thing that “makes the difference”. As one scholar explains, “The train wreck is said to be caused by the bent rail even though it was the bent rail together with the fact that the train was going at a certain speed (and other facts, of course) that led to the wreck. To cite the speed—when it is the normal speed of the train—as the cause would be wrong precisely because it is normal and therefore present as a factor when trains are not wrecked.”36 Infringement that occurs on a system designed more for infringing uses is a less unusual result than infringement that occurs on a more general purpose system.

5) Dominion over copy

The party that retains dominion over or possession of a copy once it has been made has less of a claim that he should not be legally responsible for making the copy in the first place. Courts are hesitant to place much stock in the fact that a particular defendant may retain possession over a copy—in Netcom, for example, the court rejected the argument that infringing copies remained on Netcom servers for up to eleven days prohibited it from limiting direct liability. But the converse—a service does not possess the copy once it’s made—has been a factor in limiting direct liability for some courts.37

Dominion over a copy, that is, the right or ability to control the copy, is also relevant. Several courts have limited direct liability by relying on the lack of an ability, legal or technical, to control the copy once it has been made.38 In Dish, though the Ninth Circuit ultimately held that the district court did not abuse its discretion when it denied a preliminary injunction, it did suggest that Dish’s dominion over the copies being made might end up supporting direct liability. The court said, “That Dish decides how long copies are available for viewing, modifies the start and end times of the primetime block, and prevents a user from stopping a recording might be relevant to a secondary or perhaps even a direct infringement claim.”

Miscellany

“Drawing the line between where legal causation may exist and where, as a matter of law, it cannot, has generated a considerable body of law.”39 Proximate causation is a factual inquiry—a question for the jury. Even then, it is an amorphous concept. The Seventh Circuit, for example, does not even have a definition for proximate causation in its pattern civil jury instructions.40 This article argues that courts should resist further use of the “volitional conduct” test to determine liability for services that make copies for users and allow users to make copies and instead rely on the existing tort doctrine of proximate causation, as this would be a clearer and more common sense approach. It does not purport to give any definitive answers to the proximate causation inquiry, nor suggest that doing so would be any easier than applying proximate causation outside the copyright context.

But I do want to end with a couple miscellaneous points worth mentioning.

First, and perhaps most importantly, while there may be similar principles governing causation of each of the various exclusive rights of a copyright owner, courts must be careful about the distinctions between each specific right. Throughout this article, I have used the term “copying” as shorthand for any of the exclusive rights of a copyright owner.41 However, the factors I trace are most relevant to the reproduction right. The elements of an act of reproduction are different from the elements of an act of distribution or a public performance. To note one important difference: when a copy of a work is made, there is only a single act of reproduction. A transmission, by contrast, may involve multiple performances.42 This materially changes any causation analysis.

Second, although intent, foreseeability or knowledge are not required to establish strict liability, their presence certainly demonstrates a more proximate cause of the resulting harm. Some courts, like the Cablevision court, appear to see evidence of such factors as irrelevant, or even contrary, to direct liability.43 However, it would seem that the fact that a service provider acted in a way that showed it intended the making of copies seems relevant to the question of whether it caused the making of the copies.

The claim that courts should analyze who “makes” a copy under proximate causation rather than volitional conduct is a starting point, not an end point. But it should provide greater clarity and results that are more congruent with common sense—results that should better adhere to copyright’s greater purpose.

Footnotes

  1. See, for example, David Sohn, Cloud Computing Threatened in Aereo Supreme Court Case, CDT (March 3, 2014); Marc Perton, Cablevision: Case against Aereo could destroy cloud computing (and our cloud DVR), Engadget (Dec. 13, 2013). []
  2. Cloud computing does not, for example, appear to have been destroyed in Australia despite a 2012 decision that is the equivalent of reversing Aereo. []
  3. 17 USC § 512(c). []
  4. Elektra Records v. Gem Electronic Distributors, 360 F. Supp. 821 (EDNY 1973). []
  5. The Ninth Circuit would later hold that a place “open to the public” does not include a hotel room because an individual renting a hotel room enjoys a similar constitutional right of privacy. Columbia Pictures Industries, Inc. v. Professional Real Estate Inv., Inc., 866 F. 2d 278, 281 (9th Cir. 1989). []
  6. The Supreme Court would eventually hold that this characteristic of Betamax players also prevents the imputation of requisite knowledge for contributory infringement by Sony. []
  7. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (SDNY 1991). []
  8. Playboy Enterprises v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993). []
  9. Religious Tech. Center v. Netcom On-line Comm., 907 F. Supp. 1361 (ND Cali. 1995). []
  10. 373 F.3d 544, 550 (4th Cir. 2004). []
  11. 338 Fed. Appx. 329 (4th Cir. 2009). []
  12. 536 F. 3d 121 (2nd Circuit 2008). []
  13. Perfect 10 v. Giganews, CV11-07098 AHM (SHx) (CD Cali, March 8, 2013); Wolk v. Kodak Imaging Network, Inc., 840 F. Supp.2d 724, 742 (SDNY 2012), “There is no dispute that any reproduction, display or transmission of the Plaintiff’s images by or through the KODAK Gallery website is an automated process with no human intervention by any employee of the Kodak Defendants. The fact that Wolk’s images are copied into product simulations in addition to being transmitted to fulfillment vendors does not constitute a volitional act where the copying is automated”; Disney Enterprises v. Hotfile, 798 F. Supp. 2d 1303, 1309 (SD Fla 2011), “courts have repeatedly held that the automatic conduct of software, unaided by human intervention, is not ‘volitional'”; Parker v. Google, Inc., 422 F. Supp. 2d 492 (ED Pa 2006), “When an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing. The automatic activity of Google’s search engine is analogous”; Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nevada 2006), holding that, regarding the creation and downloading of a cached copy of a web page from Google’s servers, “The automated, non-volitional conduct by Google in response to a user’s request does not constitute direct infringement under the Copyright Act.” []
  14. Perfect 10 v. Giganews, supra. []
  15. The lower court initially misquoted Prosser as saying the proximate causation inquiry looked at who was “the most significant and important cause” of the copy rather than “whether the conduct has been so significant and important a cause that the defendant should be legally responsible” a fact seized upon by plaintiff’s in their motion for rehearing en banc. The Ninth Circuit denied the rehearing but amended the original opinion to note the misquotation, though the ultimate outcome remained unchanged. []
  16. National Photo Group v. Allvoices, No. C-13-03627 JSC, n.3 (ND Cali, Jan. 24, 2014). []
  17. Eleanor M. Lackman and Scott J. Sholder, The Role of Volition in Evaluating Direct Copyright Infringement Claims Against Technology Providers, 22 Bright Ideas 3 (2013). []
  18. Sater Design Collection v. Waccamaw Construction, No. 4:08-CV-4133-TLW-SVH (D. S.C., Feb. 14, 2011) (“Case law establishes that knowledge or intent is not an element of copyright infringement “). []
  19. “Causation principles generally applicable to tort liability must be considered applicable. These require not only cause-in-fact, but “legal” or “proximate” cause as well, the latter involving a policy rather than a purely factual determination: “whether the conduct has been so significant and important a cause that the defendant should be held responsible.” Brandenburg v. Seidel, 859 F. 2d 1179, 1189 (4th Cir. 1988), quoting Prosser and Keeton Torts, § 42 p. 272 (general principle) (5th ed. 1984); “Cause in fact, “but for” causation, is not enough for liability. ” * * * `”Once it is established that the defendant’s conduct has in fact been a cause of the injury * * * there remains the question whether the defendant should be legally responsible for what he has caused * * *,”` ” and that is a question of policy to be resolved by the courts.” Benner v. Bell, 602 NE 2d 896, 899 (Ill App 4d 1992). []
  20. Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928) (Andrews, J., dissenting). []
  21. Antony Honoré, “Causation in the Law”, The Stanford Encyclopedia of Philosophy (Winter 2010 Edition), Edward N. Zalta (ed.). []
  22. CSX Transportation v. McBride, 131 S. Ct. 2630, 2646 (2011). []
  23. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 US 687, 712-13 (1995) (O’Connor concurrence). []
  24. Khurana v. Innovative Health Care Systems, Inc., 130 F. 3d 143, 148-49 (5th Cir. 1997). See also Benner v. Bell, supra at 899, noting policy questions underlying proximate causation include “reasonable foreseeability of injury, likelihood of injury, magnitude of burden of guarding against it, and consequences of placing that burden on defendant.” []
  25. Steven Shavell, “Causation and Tort Liability “. []
  26. Union Pump Co. v. Allbritton, 898 SW 2d 773, 775-76 (Texas 1995). []
  27. See Frederick Schauer, Free Speech on Tuesdays, Virginia Public Law and Legal Theory Research Paper No. 2014-10 (January 10, 2014). Schauer takes on the question of what it means to say a right “exists” and examines the way we talk about—and specify—rights. Noting that “there is no remark without remarkability,” Schauer writes that, “although it is thus true that there is in fact a right to free speech on Tuesdays, it would be odd for someone to say that there is a right to free speech on Tuesdays. And that is because to say that there is a right to free speech on Tuesdays implies that there is something different or special about free speech on Tuesdays as compared to some background or baseline understand.” Similarly, to say that causation requires volitional conduct is both technically true but implicitly “remarkable.” []
  28. See, for example, Capitol Records, LLC v. ReDigi, Inc., 934 F. Supp. 2d 640, 657 (SDNY 2013), “While that process is itself automated, absolving ReDigi of direct liability on that ground alone would be a distinction without a difference. The fact that ReDigi’s founders programmed their software to choose copyrighted content satisfies the volitional conduct requirement and renders ReDigi’s case indistinguishable from those where human review of content gave rise to direct liability.” []
  29. Though the court in Columbia Pictures Indus. v. Redd Horne, Inc., 568 F. Supp. 494 (WD Pennsylvania 1983), aff’d 749 F. 2d 154 (3rd Cir. 1984), was interpreting the definition of a “place open to the public”, it spoke to this distinction as well. In holding that performances in private viewing booths in a public video store were within the scope of a copyright owner’s exclusive rights, the court noted that “the potential exists for a substantial portion of the public to attend such performances over a period of time.” Id. at 500. []
  30. See, for example, In Re Cellco, 663 F. Supp. 2d 363, 377 (SDNY 2009), “Once the customer has downloaded the ringtone onto her telephone, she controls the telephone and makes the decisions that determine whether that ringtone will be triggered by an incoming call signal”; Perfect 10 v Cybernet, 213 F. Supp. 2d 1146, 1168-69 (CD Cali 2002), “Based on the evidence before the Court it appears that Cybernet does not use its hardware to either store the infringing images or move them from one location to another for display. This technical separation between its facilities and those of its webmasters prevents Cybernet from engaging in reproduction or distribution, and makes it doubtful that Cybernet publicly displays the works”; Universal City Studios v. Sony Corp, 480 F. Supp. 429 (CD Cali 1979), “The copying occurs not in a store operated and managed by the defendants but rather in a person’s home, a location in which individual privacy is constitutionally protected and over which defendants have no control.” []
  31. See, for example, Disney v. Hotfile, 798 F. Supp. 2d 1303, 1307 (SD Fla. 2011), “[N]othing in the complaint alleges that Hotfile … took direct, volitional steps to violate the plaintiffs’ infringement. There are no allegations, say, that Hotfile uploaded copyrighted material.” []
  32. 749 F.2d 154 (3rd Cir). []
  33. Perfect 10 v. Giganews, CV11-07098 AHM (SHx) (CD Cali, March 8, 2013); Parker v. Google, 422 F. Supp. 2d 492 (ED Pa. 2006); Ellison v. Robertson, 357 F. 3d 1072 (9th Cir. 2004); ALS Scan v. Remarq Communities, 239 F. 3d 619 (4th Cir. 2001). []
  34. Perfect 10 v. Megaupload, 2011 WL 3203117 (S.D. Cal.). []
  35. See, e.g., Sony, supra. []
  36. Morton White, Causation in the Law by H. L. A. Hart; A. M. Honoré Review, 60 Columbia Law Review 1058, 1059 (1960). []
  37. See In re Cellco, supra.; Cybernet, supra.; Sony, supra. []
  38. E.g., Leonard v. Stemtech Health Sciences, Inc., CV 08-67-LPS-CJB, 2013 WL 5288266 (D. Del. Sept. 19, 2013), though infringing photo was copied onto a website defendant owned, hosted, and directly profited from, the photo was copied by independent distributor onto an area of the website the defendant did not control. []
  39. Union Pump Co. v. Allbritton, 898 SW 2d 773, 775-76 (Texas 1995). []
  40. Federal Civil Jury Instructions of the Seventh Circuit (2009). []
  41. SOS, Inc. v. Payday, Inc., 886 F. 2d 1081, 1085 n.3 (9th Cir. 1989); Playboy Enterprises, Inc. v. Webbworld, Inc., 991 F. Supp. 543, 550-51 (ND Tx 1997), “‘Copying’ is a judicial shorthand for the infringement of any of a copyright owner’s exclusive rights.” []
  42. See House Report No. 94-1476 (1976), “Under the definitions of “perform,” “display,” “publicly,” and “transmit” in section 101, the concepts of public performance and public display cover not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public. Thus, for example: a singer is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set.” []
  43. See also Giganews: “Plaintiff ‘s allegations regarding Defendants’ knowledge of the pirated content on its servers do not salvage Plaintiff’s direct infringement claim. As the Netcom court pointed out, “knowledge” is not a required element of direct infringement (although it is a required element for contributory infringement).” []

42 Comments

  1. It seems to me that Aereo (and that other service) are selling a defective product. Either they are found directly liable, or their customers are… and if the ladder, why would anyone buy something that allows them to be sued so easily. Would not the consumer be able to sue Aereo for selling such a defective product, if indeed it is found the onus lies on the user?

    • AudioNomics–
      If the users of Aereo were to be sued, they’d probably argue that they engaged in fair use, probably for time shifting purposes, just as was hypothesized and effectively approved of in Sony.

      But it’s unlikely that they would be sued. Even the broadcast networks have limited resources available for litigation. Suing users has been shown not to provide any benefits to plaintiffs, either in terms of monetary damages or as a deterrent. And since unlike other entities, there are no alleged infringers downstream of the end users, there are no side benefits as would come with cutting off the head of the snake as it were.

      Of course, snake-head-cutting as in Napster or Grokster doesn’t seem to have accomplished much other than to increase the number of snakes, so bang up job there, guys.

      • Your right about the end-user.. my comment was hastily made.
        Still though, for Aereo’s part (and since we’re using the snake metaphor) , it seems like they are trying to slither around paying for the rebroadcast licenses (as that is their entire service). I just don’t see how if, for example, every single other rebroadcaster can pay the fee and still thrive.. that they just don’t save the lawyer fees, pay for the license and move on with life. To me anyhow, sticking an extra doo-dad onto a server chip and then calling it ‘legal’ doesn’t seem fair to all others playing the rebroadcast game (not that any of those other companies are my favorite in the world.. far from it.)

        • “Still though, for Aereo’s part (and since we’re using the snake metaphor) , it seems like they are trying to slither around paying for the rebroadcast licenses (as that is their entire service).”

          Yes, although if they’re correct that their service doesn’t infringe, they have no obligation to pay for a license. A seller of used books could certainly go to book publishers, hat in hand, and offer to pay them money or adhere to other terms in an attempt to get the permission of the publishers to sell used books. But since selling used books is not infringing, as the Supreme Court recently reminded everyone in Kirtsaeng, there’s no need to get permission at all.

          I just don’t see how if, for example, every single other rebroadcaster can pay the fee and still thrive.. that they just don’t save the lawyer fees, pay for the license and move on with life.”

          Well, four reasons immediately spring to mind. First, the fee may be high enough that once it was passed on to customers (in whole or in part) as part of a higher fee for the Aereo service, that it would leave Aereo outside of the market segment they want to be in. Apparently they charge $8-12/month. Tacking on rebroadcast fees for ten or so channels (don’t forget that there are local broadcasters too; it’s not all just national networks) could double their price and shrink their customer base, which still has to pay for Internet service separately just to get Aereo.

          Two, it’s not quite a compulsory license. Networks have their choice of either forcing cable providers to carry their stations but at no charge, or of forcing them to pay a charge but only if the provider chooses to carry the station. The networks can just refuse to do business with Aereo by requiring a fee so high that no one would ever pay it. Perhaps it would be a good idea for the Feds to regulate this more closely and set prices too, in the public interest of having tv services provided and affordable and reasonably but not exorbitantly profitable.

          Three, my guess has been that if Aereo can show that they’re fully legal, they will be able to license a patent or something to the cable providers that want to use Aereo like services as a form of leverage in the event of hardball negotiations over rebroadcasts in the future. E.g. if Disney can’t use the threat of taking away broadcast ABC at least, cable providers will have a bit more of an edge in how much they pay for ESPN and such. But Aereo-like services appear to exist, so maybe there is no such patent.

          Four, it may be personal. IIRC, Aereo is mainly funded by and ultimately controlled by Barry Diller, a longtime TV man, and he may just have a grudge or some other motivation that makes it worthwhile to him to spend a few million on this. He’s got about $2 billion, is in his 70s, and can’t take it with him, so why not indulge?

          • The fact that Barry Diller is behind Aereo makes it all the more fascinating. There is probably more to this Aereo debate then we realize.

        • So you’re essentially saying that it’s not the product that is defective, it’s their entire business model…(if found illegal) I know you would quarrel with that phrasing, but it is true.. no matter how many elegant words it is wrapped in. They are garnering profit while free-riding on others (valuable) content.

          • “They are garnering profit while free-riding on others (valuable) content.”

            What of it? Free riding is neither necessarily illegal, nor inherently wrong, nor inevitably harmful.

          • Anonymous wrote: What of it? Free riding is neither necessarily illegal, nor inherently wrong, nor inevitably harmful.

            The classic comment of a thief.

          • Yes but anyone with an TV antenna is also free riding. I don’t like this argument at all, because morally, it’s free riding to use an antenna since you avoid paying the substantial license fee.

          • No, it is not. Free to the consumer doesn’t mean “free”. Someone is paying..and direct (over the air) to consumer doesn’t involve rebroadcast licenses… just when a company (such as a cable or satellite) rebroadcasts is such a fee involved (paid by the company)… Aereo is doing the exact same thing as these other companies, except they are not paying the rebroadcast license… that is the only reason they are in court.

          • If you use an antenna, you are not paying the broadcast license. People with cable TV are actually subsidizing the cost of content for people who use antenna. It’s true. Using an antenna is a textbook example of free riding. It may not be illegal, but it’s still free riding.

          • Let’s be clear: cable companies pay exactly nothing (nada, zero) in copyright fees to retransmit local stations. When Congress revised the copyright act in 1976, they looked at local retransmission and concluded that the rightsholders (who, generally, were not the broadcasters) had already been compensated for the performance in that market, and they weren’t entitled to additional compensation, merely because of retransmissions. So they created a statutory license, with no royalty whatsoever, for local cable retransmissions.

            Much later, Congress was concerned about the competition dynamics between cable and local broadcasters, and created the retransmission consent regime as part of communications law. (A concern, btw, that time has proven was profoundly misguided.) Retransmission fees paid by cable companies are not copyright fees, and have nothing to do with copyright law. Those fees are not paid to rightsholders, but directly to broadcasters, and they are wholly independent of whether the broadcasts even contain copyrighted content.

            So when you talk about “free riding,” keep in mind that neither consumers nor cable operators (nor satellite operators, nor telco operators) pay any copyright fees, whatsoever, to retransmit over-the-air broadcasts. Congress very intentionally concluded that local retransmission did not harm rightsholders, and did not warrant any additional royalties.

            Interestingly, in its amicus brief, FilmOn X makes a strong case that if Aereo is deemed to be retransmitting, it should be entitled to the same royalty-free statutory license for local retransmission that cable companies enjoy, because the copyright act’s definition of “cable system” turns on the same “any device or process” language that the transmit clause does.

            On the other hand, the communications act’s definition of “cable system” unquestionably excludes a provider such as Aereo, so that retransmission consent simply does not apply to them, and will not apply to them absent an act of Congress.

  2. Excellent post, Terry! As you know, I’m very much for calling the analysis done under the volitional conduct test what it is (or at least, what it should be), namely, proximate causation. It seems Judge Whyte called it “volition” in Netcom, and that name has unfortunately stuck. Your argument about the First Amendment protecting automated functions of online services is great. I think service providers should get the benefits and the burdens of the law for whatever they program their computers to do. The “my computer did it!” argument makes no sense to me.

  3. Terrific post! Best one yet on CopyHype. This has been my argument since Judge Louis Stanton in Viacom v. YouTube messed up case law with his view of an “inconceivability of unprotected infringements”, which is now a rotten view in the ruling. Upload and download copyrights on Google/YouTube — Judge Stanton says that is an “inconceivability of unprotected infringements”.

    Now if we follow the money, the credit card companies owe Trillions, punitively, for enabling all of this theft, collecting fees, and destroying physical objects from economies. Like HotFile, MegaUpload, IsoHunt (Bit Torrent), Google/YouTube through Mozilla……it’s a long list and it won’t last forever.

    Thanks.

  4. Terry, I’m not clear what the point of all this ultimately is. To what end is it to propose a new policy for determining who makes copies, without evaluating the issue what actually would make sense from a broader policy perspective — namely, whether we should even care who makes the copies, in the first place?

    What difference should it make where a copier is located or who owns it? If an individual possesses a right (by license, fair use, or otherwise) to make a copy with a photocopier, isn’t that what should matter, assuming our concern is constructing a rational policy?

    What difference should it make who actually makes the copy? If an individual possesses a right to make a copy, why shouldn’t they be able to engage another person to make that copy on their behalf? Again, shouldn’t a rational policy be concerned primarily with whether the underlying act/use (i.e., by the end-user) is lawful, rather than the details of how that act is executed?

    Inasmuch as you may be arguing that we shouldn’t be concerned about automation vs. human intervention, I actually agree. I don’t really see why that should make a difference. To pick an example, if Kinkos produces course-packs for college professors, why should we put a burden on Kinkos employees, any more than we would put such on a computer, to ascertain and/or determine whether the materials are subject to copyright, or not, whether any materials that actually are subject to copyright have been appropriately licensed, or whether their use constitutes a fair use. Isn’t that asking an awful lot of a simple copy shop? Wouldn’t it make much more sense to have such liability rest solely on the professors who construct those packets (and on the colleges for whom those professors act as agents)?

    Or let’s consider Tivo. When a user programs her Tivo to a record a single show, who supplies the volition, the user or Tivo? Who supplies the proximate causation? Does the answer change if the scheduled time for the show subsequently changes, and the Tivo automatically adjusts the recording time? What if an error prevents the recording, and the Tivo automatically schedules the recording of a subsequent airing, in response?

    What if the user programs a Season Pass, rather than a single show, so that the Tivo actually selects all the specific instances of the show to record?

    How about Tivo recommendations? The only volition/causation supplied by the user is whether to enable or disable this Tivo feature. Once enabled, Tivo uses its knowledge of the user (only indirectly adjustable by the user) to select specific programs to record, that it predicts may be of interest to that user. Who supplies the volition/proximate causation? Does it depend on whether the feature was defaulted to on or defaulted to off? (For the record, Tivo currently defaults this feature to on.)

    Frankly, I don’t feel certain that you would conclude that any of these are actually proximately caused by the user…but for the sake of argument, let’s assume that your theory would conclude the user supplies the volition and proximate causation in every instance other than Tivo recommendations.

    On the other hand, I have to presume that you would conclude that Tivo supplies the volition and the proximate causation for all recommendations that are recorded. By your theory, then, Tivo would be the maker of those copies, and Tivo not itself possessing a fair use right to make such, those copies would be infringing. (Furthermore, by the theory you and Devlin put forth, any playback by the user of those copies, even within the privacy of her home, would be a public performance by Tivo, also infringing.)

    And to bring it back to the question of automated vs. human intervention, what if the user were handicapped, and unable to program the Tivo for themselves, so that a paid caretaker programs the Tivo for her? What if that paid caretaker selects some programs on the belief that the user would enjoy them, but without specifically being asked to program those recordings? The volition and proximate causation comes from a third party agent, who is paid to “make” the copies on the user’s behalf. So presumably these copies (and associated performances) are infringing, also?

    Isn’t this an absurd result? What rational policy goal could possibly be served by distinguishing between whether Tivo, or a paid agent, or the user is the actor, when the user possesses an underlying right to perform the acts, themselves? Why should it matter at all whether a machine, or another person, actually executed the acts on behalf of a user who possessed the right to undertake those acts, in the first place?

    • Terry, I’m not clear what the point of all this ultimately is. To what end is it to propose a new policy for determining who makes copies, without evaluating the issue what actually would make sense from a broader policy perspective — namely, whether we should even care who makes the copies, in the first place?

      First, proximate causation is not a “new policy” in tort law, nor, as I explain in this article, in copyright law. Second, you are begging the question. One of the core questions in tort law is whether an actor engaged in tortious conduct. You’re essentially saying we don’t have to ask that because the service is not engaged in tortious conduct.

      While I am amazed at your enthusiasm for wanting to place all liability for infringement on end-users while shielding commercial entities that profit off that infringement, I don’t think you’ve demonstrated a compelling case for discarding all well-settled principles of tort law in the copyright context, nor do I know what the limits of your approach would be. For example, it would appear that under your approach, I could sell bootleg DVDs of television series and not be liable for infringement–they were, after all, on television at some point, so what difference does it make if a viewer recorded it while it aired or waited to buy the DVD?

      The simple fact is that legal rights, privileges, licenses, etc., are not as fungible as you assert they are, a fact that is not specific to copyright law.

      • I don’t think my theory goes quite that far. After all, one can distinguish the selling of bootleg DVDs from a person (or machine) acting as an agent for an end-user very similarly to the way one can distinguish a public performance from a private performance. i.e., there is a difference between making bootleg DVDs for nobody in particular, and then offering them for sale to the public vs. recording a program on a specific individual’s behalf, in the same fashion that such an individual could legally do such, themselves.

        But rather than merely challenging my theory, how about answering some of the questions I posed? Which of the scenarios I present do you believe infringe (or should infringe) and which do not? And in any of the scenarios I present, why should anybody feel that there is a harm done via execution of a copy by an automated or human agent, on behalf of an end-user?

        • And in any of the scenarios I present, why should anybody feel that there is a harm done via execution of a copy by an automated or human agent, on behalf of an end-user?

          J.S. Greenfield,

          The individual has a right to make a private copy; however, the company that enables the copying for the motive of its own public, for-profit display does not have the right to grant a misconception that the individual can own a free sub-directory of a website’s public display as if it were within a private dwelling. Hence, the DMCA is being abused simply because of instant theft against content owners whom are not instant. There is safe harbor here.

          So making a bootleg copy, a recording of the content from a licensed physical object using a machine, a VCR or DVD-Recorder, and then releasing that copy on a projected screen inside a movie theater with ads for popcorn before it is exactly same as using numerous attached computers and servers for anyone to make an instant digital upload copy from that original, licensed physical object to Google/YouTube (and others) with their automated appended ads for the entire planet to view until exhaustion. But in Google/YouTube’s case, they too instantly authorize without any permission a third copy, a download to occur for 1) to view the content, and 2) use a downloading apparatus like Mozilla’s Video DownloadHelper in Firefox with requests for “donations” through PayPal for Marc Andreesson’s pockets as a criminal act to raise fees on eBay sellers who are selling the original licensed physical objects to feed their kids unaware of the unfair competition from instant counterfeiting.

          In Aereo, that company, without a Plan B mind you, intercept the licensed transmission—–that has nothing to do with the DMCA amendment—-claiming it is free-over-the-air, and then sell it, monthly, as an unauthorized secondary transmission to the public.

          It’s over. No more DMCA Take Down Notices soon. Hopefully, it will be retroactive and Google has to cough up 125 Billion of their 150 Billion cash-stash.

      • Clearly I must be missing something here as my reading of this post is that you are the one begging the question by assuming there is infringement and looking for the right actor to place responsibility. But Mr. Greenfield is pointing out that the question that should be asked first is whether or not there was infringement.

        Of course, you likely realize that which is why you are trying to pin direct infringement on them.

        • What appears to be forgotten here is that once prima facia proof of copyright exists, the burden of proof automatically shifts to the defendant, in this case Aereo. Therefore “Mr. Greenfield” is simply off. Aereo’s argument is an interception, [without a Plan B], of free, over-the-air FCC Licensed signals and to redistribute it as a secondary non-FCC approved transmission for a monthly fee—–and to profit from it by lagging the court system with abusive technology, horridly obtuse case-law to twist, and a damning government administration that grants instant theft of everyone in seconds.

          I’m going to call Les Moonvez of CBS and tell him to overrule Colbert to replace Letterman. He can just intercept the free over-the-air FCC Licensed signals of The Colbert Report on Comedy Central and resell it monthly. No need to bring him to the CBS studio for the original transmission, just intercept someone else’s. Thanks.

          • Arero provides a mechanism that converts an over-the-air signal into something I can perceive on my computer. There is one antenna per recipient. This doesn’t appear to be any different than having an antenna on my apartment building roof several stories above me working with my TV to convert that same signal into something I can perceive on my TV. If this is an interception, so is my antenna/TV combination. As for “horridly obtuse case-law,” I get that.

    • What difference should it make who actually makes the copy? If an individual possesses a right to make a copy, why shouldn’t they be able to engage another person to make that copy on their behalf? Again, shouldn’t a rational policy be concerned primarily with whether the underlying act/use (i.e., by the end-user) is lawful, rather than the details of how that act is executed?

      The fact that an individual may have a fair use privilege of making a copy doesn’t necessarily mean that a commercial copier can make that copy on the individual’s behalf while claiming fair use. See, e.g., the Princeton case:

      It is true that the use to which the materials are put by the students who purchase the coursepacks is noncommercial in nature. But the use of the materials by the students is not the use that the publishers are challenging. What the publishers are challenging is the duplication of copyrighted materials for sale by a for-profit corporation that has decided to maximize its profits—and give itself a competitive edge over other copyshops—by declining to pay the royalties requested by the holders of the copyrights. [footnote 2]

      [footnote 2] Two of the dissents suggest that a copyshop merely stands in the shoes of its customers and makes no “use” of copyrighted materials that differs materially from the use to which the copies are put by the ultimate consumer. But subject to the fair use exception, 17 U.S.C. § 106 gives the copyright owner the “exclusive” right “to reproduce the copyrighted work in copies….” And if the fairness of making copies depends on what the ultimate consumer does with the copies, it is hard to see how the manufacture of pirated editions of any copyrighted work of scholarship could ever be an unfair use.

      ***

      The defendants argue that the copying at issue here would be considered “nonprofit educational” if done by the students or professors themselves. The defendants also note that they can profitably produce multiple copies for less than it would cost the professors or the students to make the same number of copies. Most of the copyshops with which the defendants compete have been paying permission fees, however, and we assume that these shops too can perform the copying on a more cost-effective basis than the professors or students can. This strikes us as a more significant datum than the ability of a black market copyshop to beat the do-it-yourself cost.

      As to the proposition that it would be fair use for the students or professors to make their own copies, the issue is by no means free from doubt. We need not decide this question, however, for the fact is that the copying complained of here was performed on a profit-making basis by a commercial enterprise. And “[t]he courts have … properly rejected attempts by for-profit users to stand in the shoes of their customers making nonprofit or noncommercial uses.” Patry, Fair Use in Copyright Law, at 420 n. 34. As the House Judiciary Committee stated in its report on the 1976 legislation,

      “[I]t would not be possible for a non-profit institution, by means of contractual arrangements with a commercial copying enterprise, to authorize the enterprise to carry out copying and distribution functions that would be exempt if conducted by the non-profit institution itself.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. at 74 (1976), U.S.Code Cong. & Admin.News 5659, 5687-88.

      Princeton Univ. Press v. Michigan Document Servs., Inc., 99 F.3d 1381, 1386-89 (6th Cir. 1996).

      The “rational policy” at issue there was cannibalized licensing fees. See also Am. Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994). It’s based in the obvious policy that some economically valuable uses of a copyrighted work belong exclusively to the rightholder.

      As far as your barrage of TIVO hypos goes, what’s the point of discussing that? Nobody doubts that you can come up with hypo after hypo where it’s difficult to discern who proximately caused the copying. What if the sunlight reflects off of my windshield as I’m driving down the street which causes a boy to hit an errant baseball which smashes through your window and hits the “record” button on your TIVO remote which your dog had been chewing on? Boring.

      I think you’ve missed the larger picture. You’ve been asking for weeks and weeks for factors or criteria that can be applied to determine who has caused the copying. Terry here has provided you with a list of such factors. Perhaps unsurprisingly at this point, your first reaction is to question why we want these factors—the same factors you’ve been asking for. No offense, but it seems to me that no matter how many of your questions are answered, you’re never satisfied with the answer. I’m not sure what you’re expecting here. Honestly, I can’t figure it out.

      • Devlin, I’m well aware that the law currently doesn’t always treat agents acting on behalf of end-users as having the same right or license (under fair use, or otherwise) as those end users. That wasn’t a question. The question was, why should that be? (A question, in any given case, as to whether there should be an underlying fair use privilege for the end user is a completely different issue.)

        You want to dismiss my Tivo questions as mere “hypotheticals” (as if hypotheticals are somehow inappropriate), but in fact, not a single one of them is actually a hypothetical. Every single one of those examples I provided happens on millions of deployed Tivos every day!

        As an aside, the problem for you isn’t that these are hard questions to figure out. The problem is that there’s no principled way for you to reconcile your (normal) belief that recordings on a Tivo are made by the end-user, with your ongoing arguments that in other instances, such system programming constitutes sufficient “volitional conduct” or “proximate causation” to render such copies made by a party other than the end user.

        You seem to think this is merely a continuation of a discussion about Aereo. But not everything is a single discussion., and my comments above were not in response to you. But yes, for weeks I did ask for the criteria you proposed to use so that we could evaluate how it applied to different scenarios, and whether it had any principled basis. That went on for weeks because you have never been prepared to answer the hard questions, before both of us gave up on the notion that we could make any progress.

        There isn’t anything even remotely inconsistent in the questions I pose here, vs. those I’ve posed before.

        In any case, what I see in Tery’s post, reading between the lines, is fundamentally an argument to the effect of “Gee, we have a lot of people, in a lot of cases, arguing over whether they are or aren’t infringing copyright, over technicalities. I think the jurisprudence on this is a bit off, and so I’m going to propose what I see as a much more sensible and principled framework for evaluating these technical questions.” But it is couched in a context that suggests we need to make more sense of this for copyright law to be rational. For the record, I see you essentially arguing in unison with that sentiment.

        The point I am making is precisely the point that it is you and Terry who are missing the larger picture. If we are going to ruminate on how copyright law ought to work, and ought to be more sensible and principled, what kind of sense does it make to do such while ignoring whether the distinctions proposed to be drawn have any relationship whatsoever to the underlying purpose of copyright??

        Even without needing to argue again the actual purpose of copyright, if two acts have the identical effect on a rightsholder, in what universe could it possibly make rational policy sense to treat those acts differently?

        This is very fundamental question, which you want to ignore, altogether. In fact, you seem to be oblivious to it. I think the two of you are so buried in either the intricacies of legal interpretation, or advocacy for rightsholders, that you can no longer see the forest for the trees.

        And frankly that’s fine, if all you want to do is debate the law as it exists, without concern for whether it makes sense from any kind of policy perspective. (For a variety of reasons, I think you are both far off from what the law actually says, in your conclusions. And you’re certainly far off from drawing rational and principled distinctions, even from a purely technical perspective. The argument above does nothing to change that. It is simply yet another argument that, in effect, “There’s a bunch of arbitrary criteria which we subjectively ‘balance’ to make decisions. In many cases, we just ‘know it when we see it.’ Please don’t ask us about too many other cases where it’s hard to decide by our arbitrary and subjective criteria.” But by now I’m long past tired of debating you on the subject….)

        However, you do not merely purport to discuss the law as it exists. You also purport to discuss what the law ought to be. And if you are going to discuss what the law ought to be, it is ridiculous to do such without evaluating the policy purposes that are, or are not, served by the proposals.

        You’re looking at through cells through a microscope, talking about what you see as if it represents the organism in it’s entirety, and then telling me that I am missing “the larger picture,” because I’ve stepped back from the microscope and am actually talking about the whole organism.

        • “Even without needing to argue again the actual purpose of copyright, if two acts have the identical effect on a rightsholder, in what universe could it possibly make rational policy sense to treat those acts differently?”

          I know your comment was directed towards Devlin, but let me jump in here:
          They do NOT have the same effect. In the case of Aereo, it could be argued it greatly harms the economic value of the offerings.

          • AudioNomics, you are presuming a context that is not present. That was not a comment about Aereo, or any other specific case. It is a statement regarding general copyright policy issues. (In fact, with the exception of one paragraph where I responded to Devlin’s addressing of my prior response as a response about Aereo, everything I’ve written here has been about general copyright policy issues.)

            As a result, you have ignored the supposition: “if two act have the identical effect on a rightsholder.”

            If you need an example to consider that in a neutral context, then I suggest this hypothetical (egads!):

            Suppose that Terry and Devlin had their way, and programming a system would constitute sufficient volitional conduct and/or proximate causation to render the programmer the maker of copies, and furthermore, that who makes the copies is the critical issue that legality turns on. Then consider two scenarios:

            Scenario 1: Consider a Tivo, with no recommendations subsystem, but where I as an end-user am able to program (as in software algorithm coding) the device myself. I program the Tivo to use the Tivo guide data feeds and my viewing history to produce and list of recommendations and record them.

            Scenario 2: Tivo as it actually exists today, where Tivo supplies the recommendation subsystem, so that the device automatically produces a list of recommendations and records them for me, without me need to program the Tivo.

            Terry and Devlin would have scenario 1 perfectly legal, while they would have scenario 2 be an infringement by Tivo. Yet the two approaches have identical effects on the rights holders. Are you really prepared to argue that treating these two cases differently makes rational policy sense?

          • Suppose that Terry and Devlin had their way, and programming a system would constitute sufficient volitional conduct and/or proximate causation to render the programmer the maker of copies

            I’ve never said that.

          • J.S. Greenfield ignores my comments because he will lose so bad he would be disbarred. He and that other [loser], Anonymous, are Groklaw refugees with no where to go. Their existence or opinion to disrupt fact of law, is to hurt all while laughing with tongues like lizards on the other end of their smartphone button pushing. A terrorist thug or a ten year old brat are no different here.

            Thanks.

          • Terry: I’ve never said that.

            Well, then, feel free to correct my understanding, and tell me which of the scenarios I asked about in my original comment you believe involve a third party as the maker of the copies. I’ll be glad to rephrase my example scenario in terms of that example.

            Would you prefer to choose the scenario of the paid caretaker, manually scheduling recordings for her patient, based solely on her own intuition as to what her patient would be interested in? Obviously the volition and proximate causation lies entirely with the caretaker in that case, so by your view, the caretaker is the maker of the copies. Since the copies are made for a third party, and a third party who pays her, no less, they are rendered infringing by the mere fact that it was the caretaker rather than the patient, who scheduled them. Correct? Had the patient scheduled them herself, they would be perfectly legal copies (made under fair use, for the purpose of time-shifting.)

            So by your view, then, even though the rightsholder has already been paid for the patient’s use of the content (indirectly, either through subscription fees, or advertising, or both), the rightsholder is entitled to charge the patient an additional royalty for the privilege of engaging a third-party to help her make the recording. (Or in fact, the rightsholder is entitled to simply refuse to allow such, at all!)

            That’s an extreme view. And that you don’t recognize it as an extreme view, I expect, is because of the incredibly distorted perspective you’ve attained in approaching these questions.

            You see, the point isn’t whether you are proposing a rule that turns solely on who programs the system. That’s obviously a great simplification, for discussion purposes in a simple example, of what is, in fact, a large selection of various factors that you propose can and should be subjectively balanced to decide who the actor, as the critical determinant of whether an infringement exist or not.

            My point continues to be that your myopic focus on the question of who has no (or at best, little) relation to what makes rational policy sense. It’s also an extremely distorting view, even from the perspective of what current law is.

            Consider these remarks:

            Less than a month into this litigation, the parties stipulated that petitioners would not pursue any claims based on principles of secondary liability, and that respondents would not raise any fair-use defense. […] The parties’ stipulation…exaggerates the significance of the issues that remain. For example, the Second Circuit’s holding that subscribers rather than respondents would “make[] the copies” in the RS-DVR system does not purport fully to establish respondents’ liability under the Copyright Act. Instead, it sets only the internal boundary line between direct liability and various kinds of secondary liability. This Court has stated that “the lines between direct infringement, contributory infringement and vicarious liability are not clearly drawn,” Sony. The precise location of those lines has assumed dispositive significance here only because petitioners agreed not to pursue secondary-liability claims. In a more usual copyright suit, a court would have the opportunity to review a range of liability claims, each of which potentially would provide some perspective on the others. The parties’ stipulation prevents that from happening here.

            Respondents’ failure to preserve any fair-use defense likewise would hinder this Court’s ability to consider the various issues raised by services like the RS-DVR. This Court ruled in Sony that the manufacturer and seller of VCRs could not be held liable for copyright infringement because “time-shifting” by consumers constituted a fair use of copyrighted broadcasts. This Court has never addressed, however, whether a commercial actor who is charged with direct infringement may defend on the ground that he performed the copying at the behest of a customer who himself would have a fair-use defense. Because of respondents’ agreement not to assert a fair-use defense in this case, the question whether respondents or their customers would “make” the non-transient copies in the RS-DVR system has assumed great significance. The importance of that issue would be diminished if not eliminated, however, if commercial actors who make copies to facilitate their customers’ time-shifting were held to be entitled to their customers’ fair-use defense.

            […]

            Finally, respondents’ waiver of any fair-use defense affects petitioners’ public-performance claim. When a subscriber engages in time shifting, recording the program and playing it back are two sides of the same coin. If fair-use principles would excuse a cable company from liability for unauthorized reproduction when an RS-DVR system copies and stores a program on a hard disk at a subscriber’s behest, the same principles might excuse the company from liability for unauthorized public performance when the system transmits the program to the subscriber for playback. Here too, the parties’ agreement to litigate the case without reference to fair-use principles has elevated to great importance a question that otherwise might have been insignificant.

            (Do you know whose remarks those were?)

            As I’m sure many will immediately recognize, these are comments regarding Cablevision. It’s interesting to note — though let me be clear, my point here isn’t about either Cablevision or about Aereo — that petitioners in Aereo repeated the same mistake (albeit not by stipulation, this time).

            It seems to me that you (and Devlin) are stuck in this same rathole. This is what you do in every analysis you share. You focus myopically on a tiny piece of the issue, elevating what ought to be either a minor detail, or completely insignificant, to the great issue of import.

            Just as a rational approach to who is afforded a copyright interest in a written work doesn’t focus on who actually transcribed words onto a piece of paper, a rational approach to infringement analysis doesn’t focus on who actually pressed a button to create a copy.

            A rational approach would ask first, is the underlying act/use infringing, or not infringing. Only if that underlying act/use is found to be infringing do you move on to ask the question of “Who?” and then only for the purpose of determining who is directly liable vs. who may be secondarily liable.

            Let’s actually look at how this works in two real-world examples, and ones which seem to interest you considerably: Dish’s PrimeTime Anytime (PTAT) and AutoHop services.

            Like the broadcasters that sued Dish, you are overwhelmingly concerned with the question of who makes the PTAT copies, the end-user or Dish. By your theory, if Dish makes the copies, it is an infringement. On the other hand, if the end-user makes the copies, it is fair use and not an infringement. Based on your prior posts, you are offended by the district court’s conclusion that the user is probably the legal maker of these copies, and therefore, Dish is not likely to be infringing. Your response is to challenge the reasoning used in determining who the maker of the copies is.

            In a rational world, however, one would ask first “Are the PTAT copies infringing?” without concern for the question of who makes them. That analysis would conclude that the PTAT copies are quintessential time-shifting. In fact, unlike a VCR or a traditional DVR, they are automatically deleted after several days, and essentially cannot be used for a potentially infringing purpose such as library building, as ordinary VCR or DVR copies could.

            Time-shifting is an established fair use, and assuming that one is not arguing that time-shifting should no longer be considered a fair use, the copies are lawful, and we don’t even bother asking the question of who made them. It doesn’t matter.

            (On the other hand, if you want to argue that time-shifting should not be a fair use — and let’s suppose you succeed — we still don’t need to ask the question of “Who?” in order to determine whether an infringement has occurred. If time-shifting is not fair use, then we can simply conclude that the copies infringe. The question of “Who?” then is simply a question of who is a direct infringer, and who is (potentially) a secondary infringer.)

            Next example, AutoHop. The Ninth Circuit held, of course, that commercial-skipping doesn’t implicate a copyright interest of the plaintiffs. Personally, from a policy perspective, I would probably be sympathetic to the proposal that the law should treat wholesale, automated commercial-skipping as an infringement. But again, from a rational policy perspective, the issue is what the impact is of the underlying conduct on the rightsholders’ interests, not who makes it happen.

            It shouldn’t matter one whit whether Dish supplies me with an Autohop service that automates commercial-skipping for me, or whether I implement my own system to automate such. If such wholesale, automated commercial-skipping is to be deemed infringing, it should be infringing either way. Or if it is not to be deemed infringing, then it should not be infringing either way.

            The suggestion that these things should turn primarily on who is deemed to be the primary/direct actor is not rational from a policy perspective. And when coupled with the aggressive notions of volitional conduct and proximate causation that you and Devlin espouse, it seems to me little more than a backdoor attempt to transform copyright from a system of enumerated rights for copyright holders, to one that’s more a system of enumerated rights for consumers. (And that’s consistent with the frequent complaints that we hear about third-parties “profiting” off of somebody else’s work — as if rightsholders were entitled to control all commercially valuable uses of their work.)

            For practical purposes, such an approach would grant rightsholders a veto (in fact, every individual rightsholder a separate veto) over many — and probably the vast majority of — potential technological advancements, going forward. After all, these technologies are now increasingly, and probably already predominantly, delivered via service-provider models, rather than purely equipment sales models.

            Granting such a veto would not be an even remotely workable model, nor is it necessary to protect the interests of rights holders. If a disruptive technology comes along, the appropriate way to address that disruptive technology is by having Congress evaluate whether and how best to rebalance the rights and interests under copyright, in order to ensure the ongoing effectiveness of copyright. Giving rightsholders the veto power of a right to sue new technologies into oblivion, merely because a third-party maintains some involvement in the operation of the system, is not a reasonable alternative.

          • It seems to me that you (and Devlin) are stuck in this same rathole. This is what you do in every analysis you share. You focus myopically on a tiny piece of the issue, elevating what ought to be either a minor detail, or completely insignificant, to the great issue of import.

            Just as a rational approach to who is afforded a copyright interest in a written work doesn’t focus on who actually transcribed words onto a piece of paper, a rational approach to infringement analysis doesn’t focus on who actually pressed a button to create a copy.

            A rational approach would ask first, is the underlying act/use infringing, or not infringing. Only if that underlying act/use is found to be infringing do you move on to ask the question of “Who?” and then only for the purpose of determining who is directly liable vs. who may be secondarily liable.

            I think you start with whether there is prima facie infringement, i.e., whether the plaintiff owns a valid copyright and whether the defendant copied original elements. See, e.g., Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296, 113 L. Ed. 2d 358 (1991) (“To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265-66 (11th Cir. 2001) (“The first step in evaluating the likelihood that Suntrust will succeed on the merits is to determine whether it has established the prima facie elements of a copyright infringement claim: (1) that Suntrust owns a valid copyright in GWTW and (2) that Randall copied original elements of GWTW in TWDG.”).

            The “who” certainly matters as the “who” is the defendant. We care about what actions the defendant engaged in that caused the copying. Once prima facie infringement is demonstrated, the burden shifts to the defendant to prove a defense, such as fair use or license. And that defense certainly depends on who is claiming it. This is just basic Copyright 101 stuff. Your notion that we should analyze the act divorced from the actor makes little sense to me. If the plaintiff can’t show that the defendant caused the copying, then the case is over and there’s no need to even look at the defendant’s defenses.

        • J. S. Greenfield,

          No sir. You’re talking about using someone else’s signals, works, and content without authorization to serve the needs of others except for the holder of those signals, works, and content. Period.

        • You want to dismiss my Tivo questions as mere “hypotheticals” (as if hypotheticals are somehow inappropriate), but in fact, not a single one of them is actually a hypothetical. Every single one of those examples I provided happens on millions of deployed Tivos every day!

          Yes, but so what? It’s common knowledge that the law is not perfectly clear, even for common acts of copying. What is your point?

          As an aside, the problem for you isn’t that these are hard questions to figure out. The problem is that there’s no principled way for you to reconcile your (normal) belief that recordings on a Tivo are made by the end-user, with your ongoing arguments that in other instances, such system programming constitutes sufficient “volitional conduct” or “proximate causation” to render such copies made by a party other than the end user.

          Again, what is your point? Are you arguing that proximate causation is not the test to determine whether someone directly causes the copying? Make your argument. If proximate causation is not the test, why isn’t it so? What is the test? Tell me what you think the law is.

          The point I am making is precisely the point that it is you and Terry who are missing the larger picture. If we are going to ruminate on how copyright law ought to work, and ought to be more sensible and principled, what kind of sense does it make to do such while ignoring whether the distinctions proposed to be drawn have any relationship whatsoever to the underlying purpose of copyright??

          Even without needing to argue again the actual purpose of copyright, if two acts have the identical effect on a rightsholder, in what universe could it possibly make rational policy sense to treat those acts differently?

          This is very fundamental question, which you want to ignore, altogether. In fact, you seem to be oblivious to it. I think the two of you are so buried in either the intricacies of legal interpretation, or advocacy for rightsholders, that you can no longer see the forest for the trees.

          Maybe you haven’t noticed, but there’s serious academic disagreement about the “actual purpose of copyright.” If you want to use a policy argument to back up your assertion about what the law is, go for it. But I await your descriptive account of what the law actually is. It takes a theory to beat a theory, or so the saying goes. What’s your theory?

          • I must admit that, for somebody I believe to be an aspiring academic, it is surprising to me how persistently and emphatically you are content to dismiss anything you can’t easily address, how it doesn’t bother you in the least that you can’t adequately address such “hard” (yet common!) cases, and how frequently you ignore the substance of what I have actually said, and respond with a non sequitur.

            (And if at this point, after having exchanged scores of comments for months, comprising many tens of thousands of words, you remain unclear on my views, or whether I even have any, that speaks entirely to deficiencies on your own part.)

          • I must admit that, for somebody I believe to be an aspiring academic, it is surprising to me how persistently and emphatically you are content to dismiss anything you can’t easily address, how it doesn’t bother you in the least that you can’t adequately address such “hard” (yet common!) cases, and how frequently you ignore the substance of what I have actually said, and respond with a non sequitur.

            (And if at this point, after having exchanged scores of comments for months, comprising many tens of thousands of words, you remain unclear on my views, or whether I even have any, that speaks entirely to deficiencies on your own part.)

            Let’s skip the theatrics and the insults. If you don’t think proximate causation is the test for determining whether someone is a direct infringer, then please tell us, short and simple, what the test actually is.

          • Devlin, after having wasted months already, it is of zero interest to waste further time debating your notions around either proximate causation or volitional conduct. We already know how that turns out: You can list all the factors in the world, but because evaluating them is 100% subjective, your “theory” amounts to nothing more than “I know it when it I see it.” And you dismiss even every day occurrences as “hypotheticals” that your “theory” can’t be expected to provide an answer for without a full litigation of the specific set of facts, because your “theory” provides no objective guidance whatsoever and cannot draw principled distinctions—and apparently even you find it impossible to argue with a straight face when confronted with these “hypotheticals.”

            To what end could it possibly serve for us to continue our prior months-long game of tail-chasing over such? I have no intention to re-engage such.

            My sole purpose in posting in this thread remains to question how anybody could believe that the approach you and Terry propose should be taken—focusing entirely on the question of “who?” as dispositive of whether an act is infringing or not—could possibly serve a rational policy purpose for copyright. I presented examples for the purpose of ensuring that everybody can see the kinds of things that your and Terry’s arguments would assert actually infringe copyright, vs. those that do not, and how arbitrary those distinction are, when viewed in a context of what makes rational policy sense.

            NB, if I say, “Even without needing to argue again the actual purpose of copyright, if two acts have the identical effect on a rightsholder, in what universe could it possibly make rational policy sense to treat those acts differently?” that is not making an assertion that something specific is the purpose of copyright. It’s saying whatever you may think the actual purpose of copyright may be, treating two such acts differently cannot possibly make rational policy sense.

            If you seriously believe that there’s a rational policy purpose served by treating the lawfulness of a recording differently depending on whether I scheduled it, or whether my paid caretaker scheduled it on my behalf, please do explain that rational policy purpose to us.

            Unless you’re going to tell us that the actual purpose of copyright is something silly like, “to create arbitrary and capricious distinctions,” or “keep copyright lawyers fully employed,” I don’t believe you can produce any argument at all that distinguishing between those two cases (or virtually any other case, where you are wholly focused on the “who” to the exclusion of anything else) serves a rational policy purpose, regardless of what you may believe the purpose of copyright to be.

          • All these words, and thousands more just like them, but you never actually tell us what the law is. If causation, which is what courts use to determine liability in all intentional torts, is not the law, then tell us what the law is. I seriously doubt you can. As far as I can tell, your analysis of the law curiously doesn’t hinge on the actual content of the law.

          • Devlin, after having wasted months already, it is of zero interest to waste further time debating your notions around either proximate causation or volitional conduct. We already know how that turns out: You can list all the factors in the world, but because evaluating them is 100% subjective, your “theory” amounts to nothing more than “I know it when it I see it.”

            Let me just respond to the substance of your post. I disagree that all of these factors are subjective. Take, for example, the one big factor, in my opinion, that of who supplies the content. The test is causation—a fact that I don’t think you can plausibly refute. When the claim is direct infringement, we are looking for actions taken by the defendant that caused the copying to occur.

            Let’s say the claim is direct infringement of the distribution right and the defendant is Apple, which operates both a cloud storage service and iTunes. Let’s say the claim involves the cloud storage service, and the file that is distributed from there was uploaded by a third party user. In this scenario, Apple does not supply the content—the third party user does. Now let’s say the claim involves iTunes, and the file that is distributed from there was uploaded by Apple. In this scenario, Apple does supply the content.

            Now, think about the two scenarios in terms of causation. In the iTunes scenario, Apple has done more things to bring about the copying of that particular file. It uploaded that particular file to its servers and made it available to the general public. In both scenarios, Apple is the factual cause of the copying—“but for” Apple’s involvement, the copying would not have happened. But in the iTunes scenario, Apple’s own actions more proximately caused the copying to occur because it supplied the particular file at issue. This distinction, of course, appears in the DMCA which gives Apple safe harbor for the cloud storage service but not iTunes.

            So no, I don’t agree that it’s all arbitrary and subjective and whatever else you’ve said. I think that not only is all this an accurate description of the actual law, but I also think it’s far from arbitrary. I know you strongly disagree, and at this point you’re honestly coming across as trollish. I simply don’t find your arguments particularly persuasive.

            And you dismiss even every day occurrences as “hypotheticals” that your “theory” can’t be expected to provide an answer for without a full litigation of the specific set of facts, because your “theory” provides no objective guidance whatsoever and cannot draw principled distinctions—and apparently even you find it impossible to argue with a straight face when confronted with these “hypotheticals.”

            I’m not dismissing them. I fully admit that many of the most common occurrences of copying are difficult to analyze. This is no secret, and lots of law review articles cover this. I have no idea why you keep bringing this up. Yes, you can dream up difficult hypos. We all can. This is because the law is not perfectly clear near the margins. Just because these hard cases exist, that doesn’t mean that I’m not accurately describing the law. I disagree that my theory offers no guidance. I’ll merely mention again that I believe that who supplies the content is one such relevant factor that applies. Terry mentions several more in the post above. Let’s try this: You tell me what you think the law is and what factors you think apply, and I will spit out hypo after hypo where your test is difficult to apply. It’s easy to do. There’s nothing special about copyright law in this regard.

            My sole purpose in posting in this thread remains to question how anybody could believe that the approach you and Terry propose should be taken—focusing entirely on the question of “who?” as dispositive of whether an act is infringing or not—could possibly serve a rational policy purpose for copyright. I presented examples for the purpose of ensuring that everybody can see the kinds of things that your and Terry’s arguments would assert actually infringe copyright, vs. those that do not, and how arbitrary those distinction are, when viewed in a context of what makes rational policy sense.

            You start with the defendant, and you look at what actions the defendant actually took that actually caused the copying. Considerations about who the defendant is, for example, whether a user or a service provider, would be more relevant when considering defenses, like when an ISP claims safe harbor under 512(c). But I honestly have no idea what you’re talking about with your theory that I think the “who” is dispositive. The “who” is the defendant. Why would you be looking at anyone else?

            NB, if I say, “Even without needing to argue again the actual purpose of copyright, if two acts have the identical effect on a rightsholder, in what universe could it possibly make rational policy sense to treat those acts differently?” that is not making an assertion that something specific is the purpose of copyright. It’s saying whatever you may think the actual purpose of copyright may be, treating two such acts differently cannot possibly make rational policy sense.
            If you seriously believe that there’s a rational policy purpose served by treating the lawfulness of a recording differently depending on whether I scheduled it, or whether my paid caretaker scheduled it on my behalf, please do explain that rational policy purpose to us.

            I never said I thought there was a difference in that hypo. I agree, there’s a good policy argument that there should be no difference.

            Unless you’re going to tell us that the actual purpose of copyright is something silly like, “to create arbitrary and capricious distinctions,” or “keep copyright lawyers fully employed,” I don’t believe you can produce any argument at all that distinguishing between those two cases (or virtually any other case, where you are wholly focused on the “who” to the exclusion of anything else) serves a rational policy purpose, regardless of what you may believe the purpose of copyright to be.

            I did mention the Princeton case above, and there I endorsed the Sixth Circuit’s distinction. I agree with the court that there is a difference between an individual who makes his own copies for his own personal use in class and a commercial enterprise that does the same thing on a mass scale. The purpose for which the individual makes the copies is fair use, but that doesn’t mean that the copy shop stands in his shoes. The copy shop’s purpose is not fair use—it’s commercial use. The copy shop isn’t taking the class with the individual. So I think in that case the “who” matters. The “who” matters because the individual’s use is very different than the copy shop’s use.

            But, again, I’m still waiting for you to explain the test for determining whether someone is a direct infringer. What are your criteria? What do you think the law is? You are clearly avoiding giving a direct answer to this question.

          • Devlin, you seem to forget that it is you, not I, who have been arguing for a change in the law respecting the determination of who is the direct infringer. I have always been clear that I am satisfied with the standard used by the Second Circuit regarding such. The same standard used by a line of cases going back. The same standard endorsed by Elena Kagan. You know…the one where an end user selecting the program to record and initiating the recording constitutes the relevant volitional conduct?

            I’m also satisfied by the extension of that as far as the Ninth Circuit took it, where the mere enabling of a feature by the end user constitutes the relevant volition conduct—mainly because, as I keep saying, I don’t think the question of “who?” should be important to evaluating whether these actions infringes.

            It is you who are arguing that this existing line of reasoning is wrong, and needs to be replaced—basically, by the application of any possible factor other than what the courts have deemed relevant to volition, in the caselaw.

            My argument is that this whole approach is a stupid way to go about analyzing copyright cases, from a policy perspective. It is hardly incumbent upon me to propose an alternative to your proposed alternative, merely because three months of arguing over such didn’t satisfy your yen to keep arguing over such.

            And I didn’t claim that the factors you propose were subjective. What I claim is that your application of them is 100% subjective. First and foremost, you are arguing for a balancing test, which is nothing more than saying that you will subjectively choose and weigh the factors, and then tell us what the answer is, based on…nothing other than how you subjectively feel about it. Then also, while the factors may be ostensibly objective, the way you apply them is completely subjective. I don’t believe there’s a single factor you have ever identified where I did not present an alternative situation only to hear you explain to us that the factor wasn’t relevant or dispositive in that case.

            You tell us that “programming the system” creates volition. Yet when I point out that your home DVR is programmed by Cox identically to the way RS-DVRs are programmed, somehow, it doesn’t apply there. You tell us that “supplying the content” creates volition, yet when I point out that Cox supplies content to your home DVR identically to the way content is supplied to something like Cablevision’s RS-DVR, somehow, supplying the content is no longer dispositive.

            We went through this dance endlessly, for every single factor, over and over again.

            Your favorite argument of all has been, and continues to be, dismissing inconvenient scenarios as “hypotheticals” that are “hard cases” and “near the margins,” no matter how real or common they may be. You apparently live in a world filled with margins from end to end and straight through the middle, with only isolated examples existing in some rarified air within the mainstream, and which only you are able to locate.

            If you feel that I am trollish, let me assure you, after of months of going in circles with you on these things, the feeling has often been mutual—though I remind myself it’s far more likely that you have merely lost all perspective and completely deluded yourself. So much so that you boast of things like how the law journals routinely talk to how ill-suited the law is to actually handle a litany of situations, and essentially declare it a badge of honor that your “theory” behaves just as poorly (or worse), and think that dodging questions that are hard for you to answer by dismissing “hypotheticals” constitutes intellectually honest argument.

            Regardless, this is precisely why I have no intention of getting drawn into another extended and useless debate over the (relative) minutiae that you keep wanting to bring us back to. We have wasted enough time and words debating your completely arbitrary and subjective application of a litany of factors.

            I am no longer willing to waste my time on such with you. And like I said, if all you want to purport to do is to argue over such minutiae, more power to you. Have it at, you have one less person arguing the issue with you.

            But when you purport to also argue what actually makes sense from a policy perspective, I call foul, because your argument has nothing to do with what makes sense from a policy perspective.

            Nor does the reasoning used in a legal decision automatically reflect a policy purpose, let alone a rational one.

            You responded to my comment on rational policy purposes by referencing the Princeton case—a 6-5 ruling that a copyshop couldn’t assert the fair use privilege of its customer. But what you’re citing is simply a statement of the law under the majority ruling. That the majority felt a commercial motive by the copyshop precluded them from claiming the customer’s fair use right is merely a statement of the majority’s understanding (or misunderstanding, as the case may be) of the fair use standard.

            The majority do not purport to suggest that there was a valid policy purpose in distinguishing the lawfulness of the copies based on who made them, or whether they were paid. Rather, they claim only to be applying differing legal standards of law based on the asserted “commercial nature” of the transaction. But to the degree that they purport to discuss any policy purpose, it relates entirely to factors that have nothing at all to do with the issue of who actually performed the copying, or whether they were paid. i.e., the exact same policy arguments mentioned by the majority would apply if the professor, himself (or the students, themselves) performed the copying.

            From a policy perspective, the only rational conclusion from such would be either to find the copying a fair use, regardless of whom performed the actual copying or whether they were paid for such, or to find the copying not a fair use, regardless of such.

            Several of the dissents, however, did explicitly address policy issues relating specifically to differentiating based on the identity of the person making the copies, and whether they were compensated for such. For example, from Martin:

            That the majority lends significance to the identity of the person operating the photocopier is a profound indication that its approach is misguided. Given the focus of the Copyright Act, the only practical difference between this case and that of a student making his or her own copies is that commercial photocopying is faster and more cost-effective. Censuring incidental private sector profit reflects little of the essence of copyright law. Would the majority require permission fees of the Professor’s teaching assistant who at times must copy, at the Professor’s behest, copyrighted materials for dissemination to a class, merely because such assistant is paid an hourly wage by the Professor for this work?

            And from Merritt:

            There is nothing in the statute that distinguishes between copies made for students by a third person who charges a fee for their labor and copies made by students themselves who pay a fee only for use of the copy machine. Our political economy generally encourages the division and specialization of labor. There is no reason why in this instance the law should discourage high schools, colleges, students and professors from hiring the labor of others to make their copies any more than there is a reason to discourage lawyers from hiring paralegals to make copies for clients and courts. The Court’s distinction in this case based on the division of labor – who does the copying – is short sighted and unsound economically.

            and:

            Money changes hands and makes the transaction “commercial” because the copyshop has freed the student from undertaking the physical task of copying. The copyshop makes its money based on the number of pages copied, not the content of those pages. The students paid the copyshop solely for the time, effort and materials that each student would otherwise have expended in copying the material himself or herself. The money paid is not money that would otherwise go to the publishers.

            There is no rational policy purpose in distinguishing the lawfulness of the copies based on who performs the act of copying, or whether they are compensated for their labor. The identity of the copier, and whether they are paid, has no impact on the rightsholder. The rightsholder is impacted identically regardless of whom operates the copier or whether they are paid.

            So from a policy perspective, the only rational positions are, in fact, either to find the copying a fair use, regardless of whom performed the actual copying or whether they were paid for such, or to find the copying not a fair use, regardless of such.

          • Have you read 107 “fair use” statute?
            The very first (of four) of the smell test is whether or not the nature of the use is commercial, yet you say (several times) that profit motive of the infringer is of no consequence.
            Fair use isn’t a “right” , it is a defense… unless you happen to be one of the specific persons or entities listed in the statute, and no one argues they are.
            You also keep saying that rightsholders are impacted identically, which is something that you made up in your own mind, as i can see substantial differences in the level of harm depending on the ‘who’ and ‘why.
            i’m not sure which country’s doctrine you are reading, because it sure isn’t the USA’s…

          • I am no longer willing to waste my time on such with you.

            Sounds like a plan. Take care, Jonathan.

          • Audionomics, I have read section 107, as I am sure all 5 dissenting judges in Princeton also had. If you have read it, then you know that commercial use is a factor to be considered, not an absolute bar to fair use and certainly not a bar to fair use merely because an “incidental private sector profit” exists anywhere in the process of making copies. The professor also earns a profit (his salary), in part, for selecting the parts to be included in his course pack. Do you believe that also precludes fair use, despite the underlying educational purpose? How about if it is part of the professor’s duties to copy the materials, himself? Then does the fact that he gets paid a salary preclude fair use?

            Given that 107 both specifically and repeatedly references exemption for “teaching” purposes, including “multiple copies for classroom use,” it’s tough to imagine that Congress’s policy intent was actually to elevate the “incidental private sector profit,” such as that a copyshop earns in performing ordinary copying services, over the underlying “nonprofit educational purpose” of the copies.

            But of course, that goes to what Congress’s actual policy intent regarding fair use was, whereas the question at hand was whether there is any rational policy purpose that would be served by drawing a distinction based on who performs the the copying. If you think there exists such a rational policy purpose, please do share it.

            It’s obvious that there could be a rational policy purpose in deeming classroom copies an infringement, rather than fair use. The majority in Princeton essentially makes that case, themselves. But at this point, there remains not even a candidate for a rational policy purpose to distinguish between those copies being made by a copy shop, or a paid professor, or the students themselves.

  5. It’s very hard for me to understand why having a TV antenna and Slingbox is legal if Aereo is illegal. In both cases you are depriving the TV broadcaster of a license fee.

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