Questions and Problem for
Second Reading of 17 U.S.C. § 1201
1. How should the courts determine whether technological means of
protection act "effectively," as both subsections (a) and (b) require?
2. The Sony decision established a relatively high standard
for contributory infringement in connection with the manufacture and sale
of copying machines like the video tape recorders there at issue.
Under that standard, there is no liability for contributory infringement
if the machine is "capable of substantial noninfringing uses."
Do the standards for "trafficking" liability under subsections (a)(2)
and (b)(1) differ from the Sony standard? Do they
depend more upon the defendant's intent or state of mind? If so,
which part(s) create a higher or lower standard, and which part(s) depend
more upon the defendant's intent or state of mind? Are the differences
appropriate? Might they reflect the First Amendment concerns that
we discussed earlier in connection with the Reimerdes decision?
Why or why not?
3. Please work through the following hypothetical in detail,
take notes on your answers and observations, and be prepared to discuss
it in class:
Firm A develops a new multimedia technology. The technology contains
innovative compression algorithms that allow "streaming" multimedia to
be sent over the Internet in real time. The compression algorithms
are so good that they permit full-screen, full-motion video and high-fidelity
audio to pass in digital form through ordinary telephone lines at ordinary
modem rates. In order to achieve this feat, however, some of Firm
A's software, which implements the decompression algorithms, must be "downloaded"
onto the user's computer, stored there, and executed upon "playback."
Firm A's technology also includes protective features that allow users
to record the streaming data on their hard disks or other storage devices
(so that they can "replay" the audiovisual stream at will) but that prevent
making additional copies. If a user tries to make an additional
copy from the "permitted" copy on his or her hard disk, the quality of
the audiovisual playback is so degraded that the additional copy is useless.
Firm A's technology works extremely well with low- and moderate-resolution
computer monitors (600 x 480 to 800 x 600 pixels). However, with
high-resolution monitors (1280 x 1024 or higher), the video is jerky and
distorted.
Firm B develops "add-on" software that works with Firm A's compression/decompression
software. Firm B's software does two things: (1) it allows Firm
A's streaming multimedia to play well on monitors of any resolution; and
(2) it produces output that, once stored, can be used to make multiple
copies. These two featues of Firm B's software are inextricably
intertwined; neither one can be removed without disabling Firm B's software.
Firm B offers its "add-on" software, for a price, to the public for downloading
from a Website. Firm B's advertising, both in print media and on
the Website, does not mention the second capability—permitting multiple
copies to be made. It states only that Firm B's software is designed
to correct jerky and distorted displays using Firm A's compression/decompression
software on modern high-resolution monitors. Firm B's advertising
also warns that unauthorized copying of streaming multimedia may constitute
copyright infringement. Analyze Firm B's liability under Section
1201.
Suppose hackers (not affiliated with Firm B) publish on their Website
the ability, using Firm B's software, to make stored copies that can be
further copied without limit . Suppose also that the hackers link
from their Website to the page on Firm B's Website from which Firm B's
software can be downloaded. Would these facts change your analysis
of Firm B's liability? If so, how? Suppose that Firm B was
aware of the hackers’ Website and the link on it to Firm B's own
Website. Would that change Firm B's liability and, if so, how?
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