Appeals Rulings Push Filtering over ‘Sony,’ Top IP Foes Agree
SAN FRANCISCO -- The Sony Betamax case is out and copyright-infringement filtering requirements are in for image-search engines and other Web sites that host third- party content. The leading attorney for Hollywood rights holders said that’s the message of rulings since spring by the 9th U.S. Circuit Court of Appeals in San Francisco. A defense lawyer who is one of his most prominent adversaries conceded that the cases make the outlook bleak for his side.
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A trend “back to the Netcom decision” can be seen in the series of rulings in cases brought by Perfect 10, Russell Frackman said Monday at a Practising Law Institute seminar on technology and entertainment convergence. Frackman, who represented Perfect 10, has worked for the entertainment industry in copyright cases including Napster, Aimster and Grokster. In Netcom, a pre-Digital Millennium Copyright Act, the court found that the operator of an online bulletin board could be contributorily liable for copyright infringement in postings on it.
The Supreme Court’s 1984 Betamax decision got “short shrift” from the appeals court and the district judge in Perfect 10 v. Amazon.com -- and “similar language” marked the 9th Circuit’s July decision in Perfect 10 v. Visa International Service Association, Frackman said. The court in Sony, a centerpiece of efforts to limit digital copyright enforcement, said a maker of copying equipment has no contributory liability for infringement if the gear is “capable of substantial noninfringing uses.”
The 9th Circuit decisions are the opening gun for “litigating issues of filtering” and blocking to prevent infringement, and YouTube has responded by talking about developing filtering technology, Frackman said. In Amazon -- a case concerning Google’s image search, licensed by Amazon - - the appeals court took Google to task for having failed to “take simple measures to prevent further damage to Perfect 10’s copyrighted works,” he said. The 9th Circuit expanded on the general point in Visa, Frackman said. But the court didn’t specify the measures to be taken, raising “interesting issues” for future proceedings, he said. The answers will affect theories of vicarious and inducement liability as well as contributory infringement, Frackman said.
“The language from the Amazon.com case is indeed troubling,” conceded Andrew Bridges, who represented Google and has argued for copyright defendants including Napster, Grokster, StreamCast, ClearPlay and ReplayTV. “Copyright in this area is starting to look like negligence law,” with “expansive” liability for defendants,” he said. The Sony Betamax ruling was “very much alive” in the Napster cases, but now “we are facing the blunt question” of whether “the courts are going to get into… involvement in the design of services,” Bridges said, calling it “terribly, terribly troubling to clients in the technology and e-commerce areas.”
Amazon also stands for the unstated principle that a Web site’s actions can be “volitional” enough to hold the operator liable for infringement even if entirely automated, Frackman said. “If it’s on the server” of the defendant, “it doesn’t matter how it got there,” he said.
More briefs have been filed with the 9th Circuit in Amazon on who has the burden of proof in affirmative defenses regarding a preliminary-injunction request, Frackman said. The court asked for the brief in response to a request to rehear a point on which the opinion went against Perfect 10, on what it termed a new point of law, he said. “This may very well be an important decision,” Frackman said.