Supreme Court Admits Copyright Infringement May Actually Help The Copyright Holder

from the some-good,-some-weird dept

We've written a few times about the mess in the law concerning how to figure out the statute of limitations on copyright. The law says its 3 years, but it's been interpreted very differently as to which three years it means. Is it three years after the first act of infringement? Or if something is "ongoing" (such as posting something online) can you then sue for the most recent three years? In a case that went to the Supreme Court concerning the movie Raging Bull, MGM argued that because the plaintiff, Paula Petrella, waited nearly two decades to bring a lawsuit over the script, the lawsuit should be barred based on the doctrine of laches (which has come up in other cases as well). Laches, of course, says that you can't wait that long to bring a lawsuit, because you're just piling up liability for the defendant. In short, the concept is that it's inherently unfair to know about a situation, but not to bring suit, because you're knowingly just letting the amount you'll sue for stack up before finally suing.

In this case, the two lower courts sided with MGM and said that based on the laches doctrine, Petrella could no longer bring her lawsuit. The Supreme Court reversed that ruling, noting that the statute of limitations issue (allowing a "look back" of just three years) more or less overrides, but also that since laches is common law doctrine, and not a part of copyright law, it doesn't count. As Matt Schruers notes, this is an odd ruling, in that the Supreme Court seems to have no problem bringing in other common law doctrines when it suits the court (or, really, when it suits Justice Ginsburg, who quite frequently is found leading the charge on these decisions):
It is somewhat curious that the Supreme Court comfortably imports some common law principles into copyright, such as doctrines associated with secondary liability, but not others, such as the equitable application of laches here.
But there's another, perhaps more important point, that is unrelated to the direct issue in the case, but which Schruers again highlights as quite important: and that's that Ginsburg -- a notorious strong copyright supporter -- appears to admit in a Supreme Court ruling that there may be benefits to the copyright holder from people infringing. This is a somewhat startling admission in a Supreme Court ruling:
It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement. And there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner. See Wu, Tolerated Use, 31 Colum. J. L. & Arts 617, 619–620 (2008)
While it is admittedly troubling that she seems to suggest that fan sites are infringing, it's still progress that the Supreme Court has now stated, clearly, in a majority decision that infringement can, at times, benefit the copyright holder. This matters because so many people in policy and legal circles like to insist that this is impossible. In fact, Schruers himself notes that when he recently suggested something not even as broad as that, they got slammed with offensive comments:
A more interesting wrinkle is Justice Ginsburg’s explicit embrace of a point that I had previously characterized as “taboo” — that not all infringements impose costs on the rights holder.  In fact, when I wrote last year that some infringements have no economic cost, and that other infringements will reallocate wealth instead of destroy it, the site admins had to install a profanity filter for the comment section.  Yet today, Justice Ginsburg goes a step further and states that some infringement “may benefit the copyright owner.”  (To my knowledge, Supreme Court opinions don’t have a comment section.)
We actually had written a post discussing Matt's original post ourselves, and ran into similar issues with folks insisting that what we were discussing was nothing more than "theft" and "re-distribution to grifters." Yet, here we now have the strongest copyright maximalist on the Supreme Court flat out admitting that sometimes copyright infringement benefits the copyright holder.

While there may be other issues with the ruling, this is at least nice to see.
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Filed Under: copyright, laches, paula petrella, raging bull, ruth bader ginsburg, scotus, statute of limitations, supreme court
Companies: mgm


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  1. icon
    Greevar (profile), 20 May 2014 @ 4:37pm

    Re: Re: Re: Re: Proof of economic damage should be required

    "Sometimes you just have the right to do what you want with what you created. I find it is often the non-creator stating that they have a right to do what they will with the creation of another. The law says otherwise."

    Everyone is a creator of content. You're taking the narrow definition of only those that sell content are creators. Wake up. This is the age of user generated content. Assimilating and transforming content is how the creative process works. Nothing comes out of thin air. To say that using the works of others as a basis to create new works is "wrong" or a violation of someone's moral right to own what they create is flat-out denial of the relationship between expressions and ideas.

    "I disagree. I paint a painting and display it in a gallery. You take a photo of my painting and place that photo, of the painting, on a website promoting the kidnapping of girls and their sale as child brides. I obviously disagree with this idea. In your construct of copyright, this is "not significant" and I have no recourse."

    That's a very poor example. First off, slavery is a reprehensible crime in itself and those that would not be offended by it are few. Putting those two things together does not prove your case. I can provide you with a sufficient counter argument as well.

    If I took a photo of your painting and used it in an article where I give a scathing review of the painting that you didn't like, fair use allows me to do just that because I am commentating on it. You might hate what I say, but you can't stop me from doing it.

    "Intangible things have value. If they did not you would have no desire for them. I find your statement one often used to support piracy and because intangible things do have value, I cannot agree. Items have value beyond scarcity, a computer program is just one example of a good that has no physical scarcity but has "tangible" value."

    Yes, intangible things do have value. A sunny day has value and it can be shared by all without any rivalrous cost to others. I find your response is often said by those that don't understand the difference between value and price as well as assuming that the content is the item of value rather than the experience and effort the artist invests in creating it. Now that is a scarce and exclusive thing that also has value, and it can effectively bear a price.

    "Not all forms of infringement need to be prosecuted. Some such as fan fiction may benefit the original author or copyright holder but I find the "people due what they always have done they share" as utopian, and ignoring the fact the increasingly ideas and there expression are a significant portion of the economy as the production of physical goods shifts to growing economies where labor is less expensive."

    It's sad that you view fan fiction as a "form of infringement" rather than a compliment to the author they are emulating. People have always shared culture and knowledge because there is more benefit in everyone having it rather than only those that pay the gatekeeper having it.

    I'm not ignoring the fact, but you're failing to realize that content doesn't have to be a product to be a sustainable business. People can sell their skills to the market for their value to culture. Having skills that other people lack is very marketable; you don't have to sell a product to have a successful business.

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