While teaching secondary liability and fair use issues in my cyberlaw course in recent weeks, I’ve been struck by an aspect of many of the cases (Sony, Napster, Grokster etc) that we don’t necessarily focus on very often: that is, the static nature of the fact scenarios under discussion. In other words, courts have to deal with the facts before them, and those facts often arise before a copying/file sharing technology has evolved to a point where it is clear how users are really going to use the technology in practice. Additionally, courts do not have much of an opportunity to consider how the uses of given technologies might change over time and how that might impact on whether a technology provider should be held liable for secondary copyright infringement.
For example, would the Sony majority have decided differently if the case had been decided five years later and there was more evidence of how many people used the technology to create home video libraries that may be encroaching into the copyright holders’ video rental/sales markets? Would Grokster have been decided differently if it had been decided five years later and, hypothetically (and OK, far-fetchedly), by that time, the technology was being used at least 50% of the time for legitimate file sharing of public domain works?
The Viacom v YouTube case filtering through the courts may be another example of the static nature of case facts. What should a court do with a technology that maybe started off based on non-infringing user-generated-content and gradually people started to use it more and more often for copyright infringement? It wouldn’t satisfy the Grokster test for contributory liability as the technology wasn’t originally released into the market with the intent to induce infringement. With respect to Sony, the YouTube service presumably retains “substantial noninfringing uses” but the ratio of infringing to non-infringing uses changes over time.
I guess I’m wondering whether courts are really in the best position to determine whether a service whose uses change over time should be liable for secondary infringement? Bear in mind, during the number of years it takes to hear the case, the uses may have substantially changed. The Viacom decision was commenced in 2007, and even in the last three years, the way people use the service (and the steps taken by YouTube/Google to police and prevent copyright infringement) have probably changed dramatically.