Who pays for copyright enforcement?

From David Hansen, JD, Scholarly Communications intern at Duke University Libraries:

Kevin’s last blog post on champerty got me thinking about another ancient legal doctrine, also dimly remembered from law school, which has some application to recent copyright cases: “adverse possession.” Adverse possession is a common law doctrine, dating back over eight hundred years, that was developed to settle disputes over real property when one person had legal title to the land, but another actually possessed the property. Adverse possession works to give rights in the land to the possessor of the land if the original title holder has sufficiently failed to police and assert her rights over the property in question. Now sometimes referred to as “squatters rights,” one of the underlying purposes of the doctrine is to force landowners with legal title to vigorously assert and defend their own property rights.

The doctrine illustrates a default rule of our legal system—that owners of private property should pay to police and enforce their own rights. There are, of course, exceptions (for example, publicly funded district attorneys are responsible for prosecuting crimes like robbery or “criminal trespass”), but publicly-funded enforcement has traditionally been reserved for the detection and prosecution of invasions that rise to the level of a crime. Absent an external public interest in enforcement, the assumption has been that exclusive rights in property—real property, personal property, or intellectual property—are only worth legal maintenance to the extent that the rights holder will bear the costs of enforcement.

Despite this assumption, copyright owners and their policymaker-supporters have recently made overtures toward public enforcement of these private rights. Just surveying the news of the last week we see enforcement costs borne by foreign “enforcement units” like the one operated by the Recording Industry Association of New Zealand and funded by the United States government, and by Canadian Mounties who are asked to police Montreal theaters for camcorder-toting moviegoers. Efforts like these are in line with more sweeping proposals, like the Anti-Counterfeiting Trade Agreement (ACTA), an international agreement which has been criticized on this blog for shifting “lots of the costs of enforcing IP rights from the private industries that hold those rights to government agencies, funded by taxpayers.”

A more subtle brand of cost-shifting occurs, however, when those who assert copyright infringement attempt to shift liability from one private party to another. For example, CNET, owner of domain download.com, is being sued for providing access to peer-to-peer file sharing software such as LimeWire. Rather (or in addition to) holding liable users that host the infringing content themselves (a costly proposition because of the sheer number of users), or even LimeWire itself, rights holders are asking that CNET be held responsible because it hosted the software that enabled the infringing activity. The question of CNET’s liability is really one of secondary liability—focusing on the issue of either how much control CNET has over users (a key issue in deciding if there is “vicarious liability” on the part of CNET), or whether CNET took steps that were intended to induce or “foster infringement” (an important part of a “contributory infringement” finding). By shifting liability to CNET, it and others like it may be forced to carefully monitor the types of software it offers and the potential applications of that software by users. The safe harbor of Sony Corp. of America v. Universal City Studios, Inc. (holding that the mere sale of VCRs and other copying devices is not sufficient grounds for contributory liability so long as those devices have other substantial non-infringing uses) would indicate that it is not the responsibility of CNET to monitor user-application of the software it hosts. But cases that backtrack from that safe harbor—notably the case against Grokster (a peer-to-peer network) and the recent suit by Viacomm against YouTube (essentially alleging that the DMCA requires YouTube to actively monitor the copyright status of user-posted content)—have blurred the line of responsibility for vicarious or contributory liability.

In the university context the question of control or inducement becomes more difficult. For example, how much control can, or should, Georgia State University administrators exercise over the materials used for particular faculty member’s course offerings? The liability of GSU in the current case has come to rest on whether GSU administrators and librarians have properly implemented the university’s copyright policy with respect to its e-reserve offerings, a system over which the university certainly has some degree of control. But what if copyright decisions are made directly by faculty on entirely faculty-administered systems? If materials are posted on faculty-administered pages, does the university have a responsibility to police those sites for infringing content? Should it? Perhaps faculty members have an academic-freedom interest in making their own fair use determinations. Fair use, after all, has a knotty but ultimately complimentary relationship with the First Amendment right of free speech.

In the past, academic publishers quickly named universities and administrators as defendants in infringement suits, but publishers have been hesitant to name individual faculty members. Presumably this tactic is to avoid biting the hand that feeds them (what are academic publishers without the academics who write for them?), but placing sole responsibility on the university shifts, or at least hides, the costs of these suits. Faculty members remain largely unaware that the publishers to which they submit their work (in this case, Cambridge University Press, Oxford University Press, and Sage) are attacking the assertion of educational fair use of those very same works on college campuses.

A good litigation strategy would seem to dictate suing defendants who have deep pockets and who are unlikely to retaliate in a meaningful way. Plaintiffs may seek to place responsibility on the YouTubes and CNETs of the world because the alleged infringers—the users who are actually using peer-to-peer software—are too expensive or too difficult to pursue individually. Publishers, however, may seek to place sole responsibility on universities and their administrators because the other defendants—faculty members—are too dangerous to name in a lawsuit. While universities should obviously bear the risks and benefits of their own faculty members, we should be careful to monitor the extension of that responsibility to areas that truly do shift or hide the costs of enforcement.