Contributory Copyright Liability Back Before the Supreme Court

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.

On Monday, the Supreme Court is going to hear oral argument in a significant copyright case, Cox Communications v. Sony Music Entertainment. The issue before the Court is the extent of contributory copyright infringement liability, something the Court has considered twice in recent decades, in the famous Betamax case (Sony v. Universal) in 1984, and in MGM v. Grokster in 2005.

I’m interested in almost any appellate case on copyright law, but I was interested enough in this one that I submitted an amicus brief to the Court arguing how it should come out. This post will introduce the dispute in Cox case and how it emerges from the history of contributory liability; tomorrow I’ll explain how the Supreme Court’s prior intervention in Grokster has added to the doctrinal confusion; and finally on Sunday I’ll explain why I decided to take the time to write an amicus brief. Hopefully on Monday I’ll have time to do a quick review of the argument.

The Cox case represents yet another battle between content owners and technology companies over the extent of indirect liability for copyright infringement, that is, liability internet service providers might have for the infringing acts of their users. For the past two decades, much of that fight has been over the conditional immunity for ISPs provided in 1998’s Digital Millennium Copyright Act, but the Cox case returns the debate to the underlying obligations imposed by copyright law itself: when does an intermediary like Cox have to stop infringers from using its service, and when can it safely regard those infringements as Somebody Else’s Problem?

The legal question here quickly enters some deep policy waters. Intermediary liability is recognized in many areas of the law, from torts to securities fraud to criminal law to all areas of intellectual property. To be effective, intermediary liability needs to strike a careful balance. First, the direct wrongdoers have to be, in some way, difficult to pursue—if they aren’t, then there’s no need to impose liability on someone else. And second, the intermediary has to have both the knowledge and the ability to narrowly target the bad acts without causing unnecessary spillover harms to beneficial activities.

Part of the problem in achieving that balance in the modern era is that the very notion of case-by-base balancing—by courts, by regulators, by almost anyone—has gotten a bad name. As I argued in my recent article The Grapes of Roth, that style of decision-making has faded, replaced by attempts to limit judicial discretion by rigidly following the text of either statutory provisions or multi-part tests.

Recently, however, I thought I detected some inclination by some of the justices to cut back against that trend and instead emphasize that the overall balance of intermediary liability emerges from the interplay of various considerations. So I decided to give that inclination whatever additional nudge I could with my brief.

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What Might Explain D.C. Grand Juries’ Failures to Indict?

chairs for the jury

I once had the privilege of serving on a federal grand jury in Washington DC. I describe it is as a “privilege” not out of any reflexive paean to the criminal justice system, which has many flaws, and not because I was especially thrilled to have been selected. My service was particularly arduous; we met from 8am to 4pm five days a week, after which I would complete all of my work each day as a full-time law firm associate. And that continued for five weeks straight, leaving me, by the end, completely exhausted. The sense of privilege I felt came not from the system or the process, but from having the experience of serving with a group of fellow citizens from all walks of life who were all dedicated to completing one task: determining if the government had enough evidence to prosecute someone.

Based on that experience, it was with considerable interest that I read news reports that several grand juries in the District of D.C. have recently refused to return indictments in high-profile cases involving protesters. Three successive grand juries, for example, refused to indict protester Sydney Reid on charges of assaulting a federal law enforcement officer, when an FBI agent assisting in blocking Reid from interfering with an arrest suffered cuts or scrapes on her hand. Why did they refuse? Over on the Volokh Conspiracy, Prof. Josh Blackman suggests that while it’s possible DC grand juries “are carefully attuned to the gradation between felonies and misdemeanors,” he offers an apparently more plausible explanation: DC jurors are a bunch of hacks. DC US Attorney Jeanine Pirro has a similar view.

There’s a temptation, famously mocked by film critic Pauline Kael, to think that the things you and your friends care about are the things that everyone cares about. But despite the attention law professors and lawyers generally pay to politics, much of the rest of the US population is far less interested. I would hesitate to assume that the average grand juror in DC, or LA or Oklahoma City or anywhere else is as steeped in partisan politics as your average social media poster, or law school denizen, or avid consumer of news.

I don’t know what happened in these three grand juries, or in the others that have refused to indict protesters in DC and LA. I did see firsthand however that it is really hard for a requested indictment to fail. There were jurors on my grand jury that were more skeptical of the police, and there was at least one juror who had qualms about the over-criminalization of drug possession. Some defendants were more sympathetic than others. But the few “no” votes on an indictment almost never came anywhere near the 12 necessary to refuse to return a true bill. If the government had evidence on each element, we voted to indict.

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Grapes of Roth, Part II: A Sheep in Wolf’s Clothing

[This is the fourth in series of posts summarizing my new article, “The Grapes of Roth.”]
Introduction
Part I-A: Duck-Rabbits in Equity
Part I-B: Counting to 21 Similarities

By the mid-1970s judges in both the Second and Ninth Circuits realized that the “recognizability” standard for copyright infringement determinations was unworkable. As Roth Greeting Cards and International Luggage Registry had demonstrated, mere recognizability swept uncopyrightable as well as copyrightable material into the comparison, and hinged the infringement determination on the faintest suggestion of either. Some test was needed that would allow courts to do all three parts of the difficult balancing act described in Part I-A, in particular the assessment of how much protectable material was taken and whether that amount surpassed some threshold that made it unreasonable. Pre-Legal-Process courts had tackled these questions, but without saying much more than that the defendant had “wrongfully appropriated” the plaintiff’s protected expression, or taken its “aesthetic appeal,” or “justified” an infringement claim. Such openly normative assessments, relying on the judge’s subjective evaluation of the material taken, plainly would not do in a more formalist age. An alternative framework was needed.

Two decisions in rapid succession, one from the Second Circuit and one from the Ninth, latched onto the “total concept and feel” phrase as a way to express an overall level of similarity or dissimilarity in protected expression without openly making a normative or aesthetic judgement. In Reyher v. Children’s Television Workshop (2d Cir. 1976), the Second Circuit considered a claim by the authors of a children’s book based on a simple story: a lost child describes her mother only as “the most beautiful woman in the world,” which delays finding her because the mother does not meet conventional expectations of beauty.  Sesame Street Magazine published a 2-page story that followed the same basic plot, but had different dialog, different illustrations, and was set in a different location. Was it infringing? Certainly the story was recognizable, but in almost every other detail the works were completely different. Reaching for a way to assess the protected expression in the stories holistically, the panel fell upon the empty verbiage from Roth: Given the simplicity of the stories, the court suggested, “we might [also] properly consider the ‘total concept and feel’ of the works in question.” Aside from a similar sequence of events, which the court found to be unprotectable scènes à faire, the remainder of the stories had an entirely different “total feel,” and thus there was no infringement.

The following year, the Ninth Circuit found its way back to the Roth formulation as well. In Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., the plaintiffs claimed that their children’s television show, “H.R. Pufnstuff,” had been ripped off to make the McDonaldland characters — Grimace, the Hamburgler, Mayor McCheese, etc. The issues were whether the jury verdict of infringement was correct and whether damages had been properly determined. But the opinion started with a long discussion of the proper test for infringement, casting shade — without mentioning any names — on how it had been done up to that point. Merely asking about the similarity between two works — in other words, whether anything from the plaintiff’s work is recognizable in the defendant’s — produces “some untenable results,” the court noted. “Clearly the scope of copyright protection does not go this far. A limiting principle is needed,” namely one that separates out idea from expression and determines only the extent to which there has been copying of the latter.

The court then grandiosely declared, “The test for infringement therefore has been given a new dimension.” Unfortunately, as is well known, that new dimension was a thorough garbling of the Arnstein v. Porter decision from the Second Circuit, a misstep that has thrown Ninth Circuit caselaw for a loop it is still trying to recover from. But after mangling the concept of substantial similarity, the Ninth Circuit had to apply its new framework to the jury verdict below, which had held the McDonald’s characters to infringe the somewhat similar-looking H.R. Pufnstuf characters. Were they? The Ninth Circuit panel agreed with the jury. “It is clear to us that defendants’ works are substantially similar to plaintiffs’.” Why? “They have captured the ‘total concept and feel’ of the Pufnstuf show.”

In both Reyher and Sid & Marty Krofft, the reference to “total concept and feel” allowed the court to express a conclusion as to whether the defendants had taken too much copyrightable expression without specifically identifying what in the plaintiff’s work was expression, what in the defendant’s work was similar or dissimilar, and where the threshold level of similarity lay. “Total concept and feel” was thus a way of summing up all three of the difficult judgments an infringement determination required, and it did so in a way that met modern judicial norms while avoiding the ham-handedness of “recognizability.”

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