Suchergebnisse

For nearly a century, the American Law Institute's (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements projects but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century. This Article explores the analytical and historical foundations of that mismatch and shows how the Restatement of Copyright reinforces the need to tailor a methodological template and perspective that is sensitive to the nature of statutory interpretation. It explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading, and seemingly biased results that risk undermining the legitimacy of the eventual product. Finally, the Article explains how the mismatch between the two is capable of being remedied by a series of modest – yet significant – changes, which could allow the project to serve as a template for future statutory Restatements. These include: emphasizing the centrality of the statutory text and relevant interpretive sources, adopting crucial perspectival differences between incremental lawmaking and statutory interpretation and highlighting the unique legislative process through which the statute was developed.

The Supreme Court's indirect copyright liability standard, derived in Sony Corporation of America v. Universal City Studios from patent law and reasserted in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd, is widely seen as creating a safe harbor for distributors of dual use technologies. Yet, when one looks to cases decided since Sony, legislative enactments, and the decisions of technology companies in the marketplace, a very different reality emerges. This article explores and explains the broad gulf between the idealized (and idolized) Sony safe harbor and the practical reality. It shows that the law in many respects reflects the tort principles that undergird copyright liability more generally.

The dawning of the digital age has brought the Supreme Court's Sony "staple article of commerce" doctrine to center stage in legal and policy discussions about the proper role and scope of copyright protection. To technology companies, it represents a vital safe harbor for product design; to the content industries, this doctrine remains an Achilles heel. The origins of this doctrine have always been somewhat obscure. With nary a peak at the text or the legislative history of the then-recently enacted overhaul of the copyright system, the Supreme Court adverted to patent law to determine the scope of indirect liability – a fundamental issue that would loom large in the shift from the analog to the digital distribution platform for content. A slim majority of the Supreme Court justified this interpretation of the Copyright Act of 1976 on the basis of a vague assertion of "historic kinship" between patent and copyright. This article scrutinizes this critical logical premise. Part I exhaustively reviews the litigation and correspondence of the justices to understand why the Court paid so little attention to the legislative materials and so much to the patent law. It finds that gaps in the information provided to the Court, in conjunction with the justices' lack of familiarity with copyright law generally and the Copyright Act of 1976 in particular, led the Court astray. Part II tests the "historic kinship" premise, finding that it cannot withstand scrutiny. Had the Court traced the origins of copyright and patent back to their source, it would have seen that they both derive from a common wellspring: tort principles. Concerns about patent misuse and improper leveraging of monopoly power led the courts, and later Congress, to carve out an express safe harbor in patent law for those selling "staple articles of commerce" – products suitable for substantial non-infringing uses. Part III demonstrates that the 1976 Copyright Act envisioned that courts would continue to use the traditional tort wellspring, informed by the distinctive challenges of copyright enforcement. This would have brought the reasonable alternative design framework of products liability law into play. The article shows that this approach would almost certainly have resulted in the same outcome that the Sony Court reached, but of critical importance, it would have provided a more sound and dynamic jurisprudential framework for calibrating liability as new technologies develop. Part IV examines Sony's legacy, showing that subsequent legislative activity, court decisions, and the marketplace reflect a practical reality that lies closer to the reasonable alternative design standard than a broad "staple article of commerce" safe harbor. In reality, Sony's "staple article of commerce" doctrine has proven largely symbolic and unworkable, as Congress, the courts, and businesses in the marketplace have sought to promote product innovation without unduly jeopardizing copyright protection. The failure to recognize that reality, however, breeds doctrinal confusion, distorts case law evolution, and stultifies the larger policy debate over copyright protection in the digital age.