Recording Guides

"A developer sells software that records in an audio file all audio output by one’s computer. A web designer creates a popular, ad-supported website featuring how-to guides on using the software to record internet radio broadcasts, some of which are copyrighted and do not authorize duplication. Developer is sued. No liability. There is no evidence here that the developer has done anything to encourage anyone to use the product to make illegal copies. It’s doubtful therefore that there could be liability under an inducement theory. Nor is vicarious liability a realistic possibility. The courts aren’t going to require the developer to change the program to monitor people’s usage and route that information back to the developer. The developer simply doesn’t have the practical ability to control how the product is used once people download it. Finally, there almost certainly is no liability under a Sony theory. There are a great many uses for such a product that do not include copying copyrighted material. Indeed, web designer’s guides include information on recording noncopyrighted streams. So even if we restrict attention to copying streams, it would seem the product is capable of substantial noninfringing uses. This is not to mention the other kinds of recordings a user could make. Same as 3, but web designer is sued. The most promising ground here is inducement. Web designer hasn’t released a product that makes copies. Rather, the designer has encouraged others to make copies by telling them how to do it. That some of the guides aren’t for copyrighted streams doesn’t matter. Even if there is only one guide that instructs users on recording a copyrighted stream, designer might be held liable under an inducement theory—as the designer might be argued to have actively encouraged the guide’s readers to do what’s in the guide: copy a copyrighted stream."