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. identicon
    Joachim Schopfel, 21 May 2014 @ 12:28am

    Some history

    "Copyright Infringement May Actually Help The Copyright Holder": this is not really new. Last year we published an historical case study on dissemination of knowledge and copyright.

    The abstract: Does copyright protection reduce or foster intellectual and industrial creation? Based on a case study from history of science (17th century), the aim was to provide more controversial evidence to this debate. The investigation used primary and secondary sources from the history of science and made the link to the actual debate on copyright, piracy and scientific communication. The paper describes how Elzevier, through non-authorized exploitation of a new product and without consideration of the editor's legitimate interests, in a context of missing copyright protection, largely contributed to the dissemination of the French Journal de Savants and its content, and finally to the success of scientific journals. Obviously, rights infringement can not only promote the interest and objective of the rights holder but also and above all contribute to the emergence and development of new forms of scientific life. Sometimes, when barriers to communication and debate are too strong, tolerated and calculated infringement may be an option to move the lines/change the situation. In the post-Gutenberg galaxy, made up of open access, common goods and public domain, open data and e-Science, evaluation, innovation, sustainability, communication and sharing, copyright is not necessarily the (only) option to develop scientific communication. At least, the authors have to study lessons from academic publishing, copyright protection and piracy very carefully.

    Tony Volpe, Joachim Schopfel, (2013) "Dissemination of knowledge and copyright: an historical case study", Journal of Information, Communication and Ethics in Society, Vol. 11 Iss: 3, pp.144 - 155

    The full article is available at

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