Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
For permission, see CMI.

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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