Academic journal article Federal Communications Law Journal

From Betamax to YouTube: How Sony Corporation of America V. Universal City Studios, Inc. Could Still Be a Standard for New Technology

Academic journal article Federal Communications Law Journal

From Betamax to YouTube: How Sony Corporation of America V. Universal City Studios, Inc. Could Still Be a Standard for New Technology

Article excerpt

  I. INTRODUCTION
 II. VICARIOUS LIABILITY AND EARLY TECHNOLOGY: SONY'S
     ADOPTION AND DIMINISHMENT
     A. Common Law Secondary Liability
     B. The Betamax Player and Sony Corp. v. Universal City
        Studios, Inc
     C. The New Technology: Napster and Grokster
III. USER-GENERATED CONTENT, ISPs, AND THE DMCA
     A. User-Generated Content Pre-DMCA
     B. The DMCA's Outline for Limited Liability
     C. What the DMCA Has Meant for ISPs
 IV. REVIVING THE SONY STANDARD FOR NEW TECHNOLOGY
     A. The Need for a Standard in Understanding Section 512
        Exceptions
     B. Betamax and the World Wide Web: How Sony Could
        Form a Compromise in Liability
  V. CONCLUSION

I. INTRODUCTION

If any conclusions can be drawn from the very recent history of copyright case law and new media, among them is this: both courts and lawmakers view users of peer-to-peer network technology as nearly universally made up of copyright infringers. Such networks have evolved from those like Napster (which used a centralized index server through which users could share and search for files) (1) to the software employed by Grokster (known as "Gnutella" technology), which allowed users to communicate searches and file-sharing directly between the users' computers. (2) Contrast this with Internet websites, specifically those that exist almost entirely for the purpose of encouraging, archiving, and displaying user-generated content. Their structures include clear and centralized servers; hierarchies of web managers and maintainers; and in the case of sites such as Facebook, Google, and YouTube, a multimillion dollar industry. (3) All of these websites store and reproduce considerable amounts of copyrighted content, whether as the result of user submissions or their own practices. And yet unlike peer-to-peer networks, these sites have been affirmatively protected from copyright claims by the U.S. Congress through Section 512 (also known as the Safe Harbor provision) of the Digital Millennium Copyright Act ("DMCA"). (4) The response of lawmakers and courts to the way copyrighted material has been reproduced and distributed online has not hinged on the nature and structure of the technologies involved. Rather, online content providers have proved to be political forces to reckon with, as recently demonstrated in the recent controversy concerning the proposed Stop Online Piracy Act ("SOPA") and the PROTECT IP Act ("PIPA"). (5) SOPA and PIPA are largely concerned with curtailing access to such sites rather than the issue of infringement liability (6) and are particularly targeted toward sites based outside the United States. (7) However, these laws raised concerns about the potential for false claims of infringement, the blocking of sites with substantially noninfringing content, and the possible burden on service providers and search indexes to block certain sites. (8) The proposed laws, once considered very likely to pass, were met with such pushback from Internet services like Google and WikiPedia that their progress in the House and Senate were brought to a halt. (9) User-generated content sites and Internet search indexes quickly managed to harness an enormous amount of political and social power (10) that has not managed to save peer-to-peer file share networks, however.

The tension between new technology and copyright ownership is not a recent development; it predates the advent of the Internet and other "new" technologies. (11) But perhaps the first real test of copyright, new technology, and not only mass distribution but also mass reproduction, was the case of Sony Corp. of America v. Universal City Studios, Inc. (12) The case of Sony and its Betamax video recording device initiated a doctrine of "substantial noninfringing use," in a decision that ultimately favored the technology and arguably widened the scope of the fair use exception. (13) The issue would be revisited with the introduction of peer-to-peer software, in which Sony would be revised and technology would come out the unambiguous loser, with the courts finding liability at an almost unprecedented scale. …

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