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.

Problem: Section 512 in Action

      [Please work through this problem set in detail, individually or in groups.  As you do so, make notes on the following: (1) the particular subsection(s) of Section 512 involved; (2) the particular words or phrases that present litigable issues of statutory application or interpretation; (3) how you think a court would apply and interpret the relevant portions of the statute; (4) why you think a court would reach the interpretation that you favor (stating reasons of both doctrine and policy); and (5) what, if anything, could be done by any party to the dispute—whether before or after the dispute arose—to reduce the level of uncertainty.  Where the statutory language raises questions, be sure to check the House Report for answers.]

The Internet Expander, Inc. ("TIE") is a service provider operating physical Internet nodes in several states.  It has the latest equipment and software for providing a number of different services to the Internet "industry."

Among the many services that TIE provides is flexible, ultrafast, broadband caching.  TIE's advertising claims that its software and hardware are capable of implementing and responding to any of the many standard industry protocols for caching, including those for updating cached content and transmitting information from users back to content originators.

TIE's various nodes cache content from thousands of originating Websites per day.  Among them is the Website of Micro Music, Inc. ("MMI"), which offers reviews, downloadable copies, and streaming audio of the latest musical works from various fringe rock groups.  Most of the artists whose work appears on MMI's site allow MMI to transmit and distribute their work for free, hoping that doing so will increase their celebrity and their marketability as performers.

MMI makes money by, among other things, selling advertising space in "breakout windows."  The windows appear automatically and unexpectedly, for periods of up to 30 seconds or one minute, in various portions of MMI's Web Pages.  When they appear, the breakout windows are accompanied by audio content, which may or may not contain the works of MMI's artists.

The times at which these breakout windows appear, the precise Web Pages on which they appear, and the places on each Page on which they appear are selected at random by MMI's computer systems.  The computers are programmed to insure the minimum exposure that advertisers have paid for and the optimum "surprise" impact for users.

For example, a user perusing a catalogue of MMI's works on MMI's Website might suddenly see a fist appear to break through the Web Page toward the user.  The fist might be accompanied by a banner reading "The Mangy Rockers Pack More Punch!" and an audio segment of one of the Mangy Rockers' latest hits.  Although ads like this, appearing at random times and places, are startling to many uses and annoying to some, the majority of MMI's users and advertisers seems to like them, for MMI has achieved widespread popularity.

One day, TIE's designated agent for notification of infringement receives an e-mail message apparently sent by Polyphone Records ("PR"), a large multinational producer of recorded music of all types.  The message states that PR has observed infringing activity, involving unauthorized use of music copyrighted by PR, on various versions of MMI's Website as received through TIE's caching service.

The message goes on to explain that the infringing activity consists of audiovisual "background" for some of MMI's "breakout window" ads.  It lists several songs, in which it claims PR owns the copyrights, that allegedly were used as audio accompaniment to MMI's breakout ads without authorization, and it mentions several advertisers with whose ads the infringing audio accompaniment was observed to appear.  It next asserts, "on information and belief," that the infringing activity occurred in connection with "a number of" other songs and ads as well.  The message provides no URL ("Uniform Resource Locator" or "Web address") for any of MMI's Web pages.  Rather, it refers generically to MMI's home page: "www.mmi.com".

The e-mail message next asserts that PR owns the copyrights in the musical works at issue and that those works were used without authorization by PR or under law.  Finally, it states that PR has obtained a temporary restraining order from a federal district court requiring MMI to remove the works from its Website, but that MMI has failed to comply.

Attached to the e-mail message is a file containing a digitized image of what appears to be a court order signed by a federal district judge.  Examination of the image reveals that the district court is in the state of PR's headquarters, which is different state from that of the domiciles and principal places of business of both MMI and TIE.  The e-mail message concludes with the following:
        On behalf of Polyphone Records, the owner of copyright in the musical works at issue, I am authorized to demand that you cease and desist from providing caching services for MMI's infringing Website as quickly as technically feasible.

        Mary Q. Potter
        Assistant General Counsel
        Polyphone Records

Ms. Potter's e-mail address appears in the usual message header, and her "e-card" included in the message provides her business telephone number and the address of Polyphone Records' corporate headquarters.

TIE's agent for receiving notification tries to forward the e-mail message to TIE's inside counsel but uses the wrong e-mail address by mistake.  The forwarded message goes instead to the head of TIE's technical operations, who in turn handles the message by forwarding it to a subordinate with instructions to investigate.

The subordinate retrieves archival "backup tapes" of the latest three days' worth of caching on TIE's systems and spends several hours reviewing them.  He is able to hear snippets of several of the songs cited in the e-mail message, and is able to determine (though with some uncertainty) that they may have appeared in connection with one or more of MMI's "breakout" ads.

In reviewing the archival tapes, however, the subordinate also notices something strange.  TIE's caching services, when combined with MMI's "breakout ad" technology, appears to have had an effect on the transmission of information from users of MMI's Website back to MMI.

As is common practice, when a user requests access to MMI's Website, MMI's Website requests permission to set a "cookie" in a special browser file in the user's computer.  If the user's computer accepts the cookie, MMI's Website then automatically accesses that same cookie during subsequent "visits" by that same user to MMI's Website using the same browser.  The MMI cookie is stored on the user's computer in a "cookie file," which contains similar cookies from other Websites that the user has visited using the same browser.

When a user accesses MMI's Website through TIE's caching services, however, something unusual happens.  The user's entire cookie file, rather than just the MMI cookie, is transmitted back to MMI.  This cookie file typically contains cookies set by other Websites that the user has visited, not just MMI's cookies.  In theory, this additional data might allow MMI to snoop into the user's browsing history, or at least that part of the history recorded in the user's cookie file.

The TIE subordinate tests MMI's Website by itself and finds that it does not have this strange effect.   Only when a user accesses MMI's Website through TIE's caching services is the user's entire cookie file transmitted to MMI's Website.  When a user accesses MMI's Website directly, without caching, only MMI's cookies, and not the user's entire cookie file, is transmitted to MMI's Website.  The subordinate does not know whether TIE's management intended its caching services to have this effect, or whether it comes from some unexplained interaction between MMI's and TIE's systems.  The subordinate reports all his findings by e-mail to the head of TIE's technical operations who, preoccupied with recent apparent breaches of security by "hackers," does nothing for three weeks.

After three weeks have passed, the head of TIE's technical operations forwards all of the relevant e-mail messages to you, who are TIE's general counsel.

Assuming that TIE has met all the general requirements for eligibility in Section 512(i), and has designated an agent for notification under subsection (c)(2), please analyze:
    1.  What chance does TIE now have to claim eligibility for one or more of Section 512's limitations on remedies?
    2.  How should TIE respond to the notification from PR, and with what probable effect on the answer to question 1?
    3.  Whether or not TIE can enjoy a limitation of remedies under Setion 512, how likely is TIE to be directly or secondarily liable for copyright infringement on these facts?

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