You Could Put Someone's Eye Out With That Thing
The big copyright tussle, the ancient battle between content and technology, is going into a new phase. Now it's all about product liability.
Here's how the argument goes:
1. Failing to design something so as to constrain copyright infringement is just like failing to design something so as to avoid injury. When the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, failure to use that alternative design renders the product not reasonably safe.
2. Failing to keep people from infringing copyrighted materials using technologies is just like failing to warn consumers of the dangers of that technology. When the foreseeable risks of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings, their omission renders the product not reasonably safe.
3. So copyright protection is really a matter of consumer protection. That's why 40 state AGs filed a brief supporting the grant of cert in the Grokster case. They're worried about the injuries (child pornography, spyware) being caused to their constituents through the continued existence of peer to peer software.
4. Bad design and failure to warn give rise to liability for product manufacturers — the same should be true for manufacturers of copying devices and technologies.
This is a brilliant move. It captures so much of our current sensibilities: McDonald's should be liable if we eat too much; tobacco companies should be liable if we smoke too much; Xerox should be liable if we copy too much. This move has the potential to target everyone in the chain of distribution — anyone who made a dime out of anything that was eventually used to infringe, whatever their intent was.
But it's absolutely crazy. Manufacturers of flammable clothing can be liable because people are hurt when that clothing burns. The point is that we're trying to protect people from being hurt by the products they use. But you can't be injured by a consumer electronics device. The copyright tort injury is felt (if it's felt at all) by someone thousands of miles away in Hollywood.
Even though it's absolutely crazy, it's clearly worth a try. The tough issues in a “failure to warn” case will cost defendants zillions of dollars to fight against — what's a “foreseeable risk” of copying? what are “reasonable instructions or warnings” that might have lessened the infringement?
Time to re-read The Hunting of the Snark.
But the Judge said he never had summed up before;
So the Snark undertook it instead,
And summed it so well that it came to far more
Than the Witnesses ever had said!
When the verdict was called for, the Jury declined,
As the word was so puzzling to spell;
But they ventured to hope that the Snark wouldn't mind
Undertaking that duty as well.
So the Snark found the verdict, although, as it owned,
It was spent with the toils of the day:
When it said the word “GUILTY!” the Jury all groaned,
And some of them fainted away.