Streamers Liability

"Lenny the law student is pretty good with computers. While task avoiding, Lenny developed an application for recording streamed audio from the internet. Called Streamers, the program works as follows. It assumes the user has certain software, not made by Lenny, already installed, namely a web browser, a calendar program, RealPlayer (for playing streamed audio), and a program called WireTap. WireTap, made by another software company, records any sounds output by the computer. So, after hitting record in WireTap and listening or watching a stream on RealPlayer, the audio file created by WireTap will contain the audio of that stream (along with any other sounds the user happens to trigger when WireTap is recording). Because the raw sound is recorded and then re-compressed, the resulting audio file typically is a little lower quality than the original stream. Streamers works by coordinating these four applications. After typing into Streamers a URL and a recording schedule, the application puts the recordings into the user’s calendar with an alarm. When the time for a recording arrives, the alarm is triggered, and Streamers launches the web browser, triggering the desired stream to play, and then launches WireTap to begin recording. When the stream is finished, recording ends, and Streamers conveniently moves the resulting audio file into iTunes where it is ready for the user to listen to or put on an iPod. In this way, a user can develop a whole library of streams and schedules so that with no manual effort on the part of the user, he or she will always have a library of his or her favorite streams. To Lenny’s surprise, shortly after posting his application, thousands of people downloaded it and began using it to keep up-to-date libraries of their favorite NPR and commercial radio shows, making use of the online streams many radio stations provide. Though they already could have listened to these while sitting at their computers, many were eager to get these programs onto their iPods or other portable players. A good many users had questions, and Lenny provided help over email for configuring Streamers to record various radio programs hosted on numerous websites. Lenny comes to you, a well-known lawyer, with an email he has just received from VapidChannel Communications. The email demands Lenny remove Streamers from distribution and destroy all copies of the application and its source code. According to Vapid, Lenny has “promoted, encouraged, and enabled the illegal copying of Vapid’s copyright protected programs.” The email went on, “If you do not comply with Our demands within ten days, Vapid will be forced to file suit against You for copyright infringement and seek injunction and damages in an amount up to $300,000 per illegal copy.” The letter further states that “Your application, Streamers, places you in violation of the anti-circumvention provision of the Digital Millenium Copyright Act, 17 U.S.C. § 1201, as it enables unauthorized copies of audio streams that have been effectively protected against being downloaded.” Lenny is scared, makes nothing for Streamers, which is a free download, but does not want to be intimidated. What can you tell Lenny about his potential liability and what evidence, if any, might be relevant to the case? This problem obviously calls for an application and extension of the ideas in Grokster and Sony. L is not being threatened for making any copies of Vapid’s copyrighted programs. Rather, Vapid’s theory must be that he is liable for the illegal copying by others using his program, Streamers. Called “contributory infringement,” this basis for liability is not found in the Copyright Act itself but is a judicial doctrine meant to effectuate the Act’s purposes. We have identified three possible circumstances under which one may be liable for the infringing acts of another. First, vicarious liability (think Napster) may be found where one has the ability and right to control the infringing acts of third parties but does not do so. Second, liability for inducement (think Grokster) attaches when one “distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.” Third, mere distribution, with no such expression or affirmative steps, may constitute contributory infringement if the device is not capable of significant noninfringing use. A good answer here would run through these three possibilities. There’s clearly no control as there was in Napster, and so vicarious liability seems exceedingly unlikely. Inducement? Well, the facts did state that L provided some assistance to users seeking to record shows. It is not clear whether and to what extent L helped in the copying of copyrighted material. The problem asked what evidence might be relevant to the case, and the content of L’s customer support is likely important. If it can be shown that L provided no help toward what he knew to be infringing uses, then L can likely avoid an inducement claim, and he won’t have to defend the legality of the acts of any particular users he helped. What about the third possibility (Sony)? Regardless of the support he provided or steps he took, could L be liable simply because of the infringement that Streamers makes possible? The question here would center on how much non-infringing use Streamers either permits or, if Ginsburg’s analysis rules the day, is likely actually to occur. L’s lawyer would clearly want to establish the large number of potential noninfringing uses that could be made of Streamers. Think about the different kinds of evidence we could consider. The abundance of streams that do no forbid copying of this sort? Just because there may be many such streams does not mean that their copying is a substantial part of the copying Streamers users actually engage in. Maybe the other side will gather evidence concerning the proportion of Streamers-made copies that are authorized. (Remember in discussing Grokster when we asked whether the percentage of noncopyrighted files or copies was the relevant benchmark for the Sony “significant” benchmark.) But even if Vapid can show that the vast majority of Streamers-made copies are of non-authorized streams, meaning streams that the content owners would not allow to be copied, the analysis would not stop there. Just because a content owner does not authorize a copy does not mean that he or she has a valid legal claim against the copier. If the content is not copyrigh"