I don’t know, so you might want to stop reading. But if you are willing to live with smaller slices of knowledge, then let me suggest that whatever the answer is the Supreme Court didn’t do anything unusual in its 2005 decision in the Grokster case. Larry Lessig suggests otherwise in an op-ed in the New York Times last Sunday, but I just have trouble squaring that analysis with the history of the courts in copyright. The courts created fair use, notwithstanding that the federal copyright statute said nothing about it, and the Supreme Court’s 1984 landmark decision in Sony represented an exercise in common law copyright. Whatever one thinks of Grokster on the merits, we should not think that it represents a powerful shift away from Congress in favor of the courts in copyright.
I don’t have by a well-defined sense of when courts should augment a substantial statutory scheme enacted by Congress. Courts obviously have an obligation to hear cases presented to them addressing the interpretation of a particular statute. That is easy; what is much harder is whether they should add to a statute and create a common-law regime that exists around the statute. Again, no unified field theory here, but whatever your views on that, courts have done that for a long time in copyright.
We might start, as I will do Monday in my Spring copyright class, with our first federal copyright statute, the Copyright Act of 1790. The statute is seven sections and barely more than two pages. Section 1 of the statute sets up the core copyright—limited to “any map, chart, book or books”—for an initial 14-year period, with the possibility of a second 14-year term. That copyright arises, we are told in section 3, only if a copy of the work is deposited with the local federal district court. A fee is required, as is publication for four weeks in a newspaper of the recordation of the copyrighted work with the district court. One more deposit of the work—with the Secretary of State—and you the author had a good copyright. Copyright was hard in the early days of the republic.
But nothing in the statute addresses fair use. Certainly that omission—so central to so many modern conceptions of copyright—was soon added to the statute by Congress? No. The federal copyright statute was amended at various points over the next century but our next stopping point will be the Copyright Act of 1909. That statute formed the basis of federal copyright law for the next sixty-seven years until it was supplanted in 1976. Fair use? Not in the statute. It was only with the Copyright Act of 1976 that Congress saw fit to add a provision to the statute addressing fair use (set forth in Section 107). That timeline might suggest that the doctrine of fair use didn’t exist until 1976, but that of course is wrong. Fair use emerged as a court-created doctrine which Congress embraced in the 1976 statute.
Switch to the issues considered in the Supreme Court’s 1984 decision in Sony. That case addresses two issues, whether home users engaged in fair use when they time-shifted free over-the-air broadcast television—the Court concluded that they did—and whether Sony could be held secondarily liable for copying done with the VCR. Just reading statutes, we might have thought the answer to that question was easy. As the majority opinion noted, the Patent Act expressly addressed secondary liability, setting forth in 35 USC 271(b) liability for one who “actively induces infringement of a patent” and in 35 USC 271(c) liability for contributory infringement. Congress obviously knew how to create secondary liability in intellectual property cases when it wanted to, and therefore chose not to do so in copyright when it failed to include comparable language to that of the 1952 patent act in the 1976 copyright statute. Case closed.
Not so said the Supreme Court: “the absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.” In the Court’s view, secondary liability was to be expected in almost all areas of the law, and it was the Court’s obligation to define how that liability would apply to the VCR. In concluding that Sony could not be held liable, the majority opinion relied on the “staple article” of commerce doctrine set forth in section 271(c) of the Patent Act. It is certainly true that the majority opinion in Sony told the movie studios to take their complaints to Congress, but it did that only after defining how the common-law doctrine of secondary liability would apply in this new copyright setting.
As I noted in my post when Grokster was decided, the Court’s decision in that case was in many ways quite conservative. The Court returned to the Patent Act and imported the active inducement standard set forth in section 271(b) of the Patent Act as part of the common law of secondary liability in copyright. In doing so, it mirrored what it had done more than two decades before when it had reached into the Patent Act to resolve the contributory infringement question in Sony. Not a change in method at all or a change in the way that courts have interacted with Congress in defining copyright law.
Again, I regard the basic question of what role court should play in augmenting statutes to be a hard one. The simple position is all that courts do is nothing more than alter the default setting of the law in the short run, since in the longer run, Congress has the power to overturn whatever courts decide in statutory matters. If Congress doesn’t like the result in Grokster, it can overturn it.
That simple analysis ignores the important role that default settings play in subsequent statutory enactments. Federal laws get passed when we have three votes in favor—treating the President, the Senate, and the House of Representatives as having one vote each—or when the Senate and the House are sufficiently in favor of a new law that they can override a presidential veto. That means that a strategic Supreme Court can always choose an interpretation of a law that it knows won’t be overturned by subsequent law: choose the most preferred position of the Senate or the House. If it selects, for example, the Senate’s most desired outcome, the Court knows that subsequent legislation overturning that view will be blocked by the Senate.
How we should organize the interaction among the courts, Congress and the presidency is tricky and we have spent more than 200 years trying to figure that out. But I don’t think that Grokster represents some bold new direction in court-made law in copyright. The courts created fair use and the courts defined common-law secondary liability in Sony. In embracing active inducement liability in Grokster, the Supreme Court did nothing different than what courts have done in copyright for more than two hundred years.