What’s New with Wu

Filed amicus with written with Henry Lanham on Friday in the case Twentieth Century Fox v. Cablevision.

You can download a PDF here; introduction is below.

AMICUS BRIEF OF PROFESSOR TIMOTHY WU & HENRY LANMAN

II. INTRODUCTION AND SUMMARY OF ARGUMENT

The decision below should be reversed for two reasons.

The principal problem with the lower court’s decision is that it creates an end-run around the Supreme Court’s secondary liability doctrines for copyright, as set forth in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), and MGM Studios, Inc., et al. v. Grokster, Ltd., et al., 545 U.S. 913 (2005). The Supreme Court’s secondary liability jurisprudence represents its best effort to balance content owners’ rights against the public’s interest in innovation. By creating a new form of direct liability, the district court’s holding would upend the Supreme Court’s careful work in this area and introduce new uncertainties for technological innovators.

Cablevision’s liability under Sony/Grokster, if any, is an open question. Were this dispute presented as a secondary liability problem, this Court would be forced to engage in a careful analysis of the social costs and benefits of the technology in question, weighed through the various safe harbors created by Sony and Grokster. Unfortunately, because of plaintiffs’ waiver of secondary liability claims, such matters are not before this Court, making this case a “bad vehicle” for the questions presented. The Court should not respond to this waiver, though, by creating a new form of direct liability that would side-step the Supreme Court’s rules in this area.

Second, and more broadly, the holding below creates a “regulatory asymmetry” – an unjustifiable difference in the legal status of competing solutions for providing DVR services. Copyright law unavoidably plays a major role in setting the conditions of competition in communications and technology markets. See Wu, Copyright’s Communications Policy, 103 Mich. L. Rev. 278. Given two competing and functionally similar means of communicating information, where one is held to infringe copyright and the other is not, the resulting regulatory asymmetry distorts competition. Here, the district court’s approach would create a major advantage for Device DVR technologies (or “STS-DVRs” in the district court’s terminology), by holding Network DVRs (or “RS-DVRs”) subject to a different and more stringent legal standard.

There is no reason that copyright law should chose a winner in the DVR market. Both Network and Device DVRs should be subject to the same standard – namely, the secondary liability standard set forth in Sony and Grokster.

For these reasons, amicus curiae Professor Wu respectfully suggeststhat this Court reverse the district court’s ruling that Cablevision’s proposed DVR program would directly violate the copyright laws, and suggests that liability, if any, lies under the secondary doctrines of Sony and Grokster.

This entry was posted on Saturday, June 9th, 2007 at 3:24 pm and is filed under Copyright. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.