(The Recording Industry Association of America,
Inc.) , et al.
In the Supreme Court of the
United States
Petition for Writ of Certiorari (03-658)
|
The court below decided Petitioner provided
Internet service that was “obviously” capable of noninfringing uses, App.
13a, since the general public could: [C]ommunicate directly with all [their] buddies when [] they are online, attaching to [their] communications (which are really just emails) any files that [they] want[] to share with the buddies. All communications back and forth are encrypted by the sender by means of encryption software furnished by Aimster [] and are decrypted by the recipient using the same []. App. 4a. (Posner, J.) But noting some evidence of infringing use, the court
affirmed a broad preliminary injunction, which had the effect of shutting
down Petitioner‘s Internet service. In doing so, the court below disagreed
squarely with Ninth Circuit law of contributory infringement, App. 10a, while
recognizing that this Court “must have the last word.” App. 6a. Thus, the
issues of law presented are: 1.
Whether, under the Copyright Act and this Court’s decision in Sony,
Petitioner’s provision of Internet service, obviously capable of
noninfringing use, constitutes per se contributory infringement if
there is some evidence of infringing use; and 2. If
so, whether, or to what extent, a court may use its power under the Copyright
Act’s injunction clause to order Petitioner affirmatively to monitor and
prohibit Internet communications and file attachments (encrypted by the
sender and decrypted by the recipient), consistent with the Copyright Act’s
fair-use clause, and also with: (a) the First Amendment’s speech, press and
association clauses; (b) the Fifth Amendment’s takings clause; and (c) the
safe harbor clause of the Digital Millennium Copyright Act. John Deep, Petitioner, Recording Industry
Association of America, Zomba Recording Corporation, Caroline Records, Incorporated, EMI Christian Music Group, Incorporated, Narada Productions Incorporated, Noo Trybe Records, Inc., Forefront Communications Group, Priority Records, Sony Discos, Inc., UNG Recordings, Inc., BMG Music doing business as RCA Label, Motown Record Company, Loud Records, Hollywood Records, Sony Music Entertainment Inc., Capital Records, Inc., Artista Records, Inc., Interscope Records, Virgin Records America, Inc., BMG Music doing business as Wynham Hill, BMG Music doing business as BMG Entertainment, Bad Boy Records, LaFace Records, A & M Records, Inc., Geffen Records, Inc., Island Records, Inc., MCA Records, Inc., Polygram Records, Inc., Universal Records, Inc., Motion Picture Association of America, Columbia Pictures Industries, Inc., Disney Enterprises, Inc., et al. The same parties appear in the docket of the court below. constitutional
and statutory provisions involved A. The
background of the litigation B. The
decision of the court below C. The
status of the litigation D. The
harm of the broad injunction Reasons
for Granting the Petition I. The
opinion below apparently conflicts with this Court’s opinion in Sony A. The
court below decided that Aimster was obviously capable of noninfringing use C. The
court below relies on clear error D. The
court below alters the traditional contours of copyright protection II. This
Court’s opinion in Sony may be ripe for review and has become a source
of great controversy C. Fifth
Amendment Takings Challenge APPENDICES Cases A&M v. Napster, ACLU v. Johnson, Armstrong v. United States, Buckley v. Am. Constitutional Law Foun.,
Inc., BuddyUSA v. Recording Industry, Campbell v. Acuff-Rose Music, Inc., Eldred v. Ashcroft, In re: Aimster Copyright Litigation, In re: Aimster Copyright Litigation, In re: Aimster Copyright Litigation, McIntyre v. Ohio Elections Comm., Reno v. ACLU, Sony v. Universal, SunTrust Bank v. Houghton Mifflin Co.,
Vault Corp. v. Quaid Software, Ltd., Watchtower Bible & Tract Society of
New York, Inc. v. Weinberger v. Romero-Barcelo, * * *
* * *
* * * Constitutional and
Statutory Provisions U.S. Const., art. I, § 8, cl. 8........................................... 10 U.S. Const., amend. I............................................... 23-25 U.S. Const., amend. V.............................................. 26-28 17 U.S.C. § § 101......................................................... 22 17 U.S.C. § § 106......................................................... 22 17 U.S.C. § § 107......................................................... 22 17 U.S.C. § § 411......................................................... 22 17 U.S.C. § § 501......................................................... 22 17 U.S.C. § § 502(a)..................................................... 22 17 U.S.C. § § 504......................................................... 22 17 U.S.C. § § 512.................................................... 28-29 * * *
* * *
* * * Other Authorities Paul Goldstein, Copyright (2d ed. 2003)................... 9, 20 Randal C. Picker,
The opinion of the court of appeals (App. 1a) is reported at 334 F.3d 643. The opinion of the district court (App. 24a) is reported at 252 F. Supp 634, and the preliminary injunction order of the district court (App. 82a) is unreported. The court of appeals’ judgment was entered June 30, 2003. On September 22, 2003, Justice Stevens granted Petitioner’s Application for Extension of Time to File Petition for Writ of Certiorari to November 27, 2003. The jurisdiction of this Court is invoked under 28 USC § 1254(1). constitutional and statutory The Patent and Copyright Clause confers upon Congress the Power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const., art. I, § 8, cl. 8. The First Amendment provides, in pertinent part, that "Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble . . . ." Id., amend. I. The Fifth Amendment provides, in pertinent part, that "Private property shall not be taken for public use without just compensation." Id., amend. V. This case involves several provisions of the Copyright Act of 1909, the Copyright Revision Act of 1976 (the “Copyright Act”), and the Digital Millennium Copyright Act of 1998 (The “DMCA”), respectively, each of which is printed in full in Appendices D-F hereto (App. 86-105a.). The pertinent provisions of the 1976 Act are 17 U.S.C. § § 101 (portions), 106, 107, 411, 501, 502(a) and 504. The pertinent section of the 1909 Act is former 17 U.S.C. § 1 (portions). The pertinent provision of the DMCA is 17 U.S.C. § 512. John Deep, Petitioner, studied classical music performance at Harvard (B.A. ’79), and is an author of seven books and of more than a dozen CD-ROM software products, whose work merging audio and video with e-books for education received the Smithsonian Award for Innovation in 1998, App. 121a; and also, an innovator featured in the Sunday Washington Post, Feb. 25, 2001, p. A1, App. 106a, and named one of Time Magazine’s Innovators of the Year in Music in 2001, Time Magazine, May 28, 2001, P. 73, for his creation of Aimster; and recently, a provider of Aimster Internet service, incorporated as a venture for online retail of music and movies, with various co-shareholders including First Albany Corp., App. 111a, and TransWorld Entertainment, Corp., one of the largest specialty retailers of compact discs, prerecorded audio cassettes, prerecorded videocassettes, digital versatile discs ("DVDs") and related products in the United States, with sales of $1.41 billion. TransWorld Entertainment Corp. Annual Report, 10K, May 4, 2001 at “Business: General, Branding” Petitioner, whom the court below called “Aimster,” App. 2a,
developed the Internet service at issue (“Aimster Internet service”) in
August 2000 and entered into an online retail venture with TransWorld
Entertainment in late January 2001, see App 74-75a, which included corporations
BuddyUSA, Inc. and AbovePeer, Inc. (the “Corporations”), App 26a. Petitioner prays that in the present case this Court may hear other authors, innovators and providers similarly situated to Petitioner. Respondents are the Recording Industry Association of America, Inc., et al., numerous plaintiffs, who among them, as the court below said, appear to own most subsisting copyrights on American popular music, App. 2a. A. The background of the litigationThis is an action for alleged infringement of statutory copyright, and is a consolidation of multiple lawsuits ordered by the Judicial Panel on Multi-District Litigation pursuant to 28 U.S.C. § 1407. The district court had subject matter jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1338. Declaratory relief. As the district court described, “The rattling of legal sabers began on April 3, 2001, according to Deep, two weeks after a senior executive for Transworld Entertainment Corp., a retailer of musical recordings, contacted Edgar Bronfman of Vivendi/Universal about the possibility of Transworld selling musical recordings through Aimster under a license from the major record companies.” App. 75a. On April 3, Petitioner and the Corporations received a cease and desist letter from Respondents alleging contributory infringement. App. 75a. Petitioner urged the shareholders that the
Corporations sue for declaratory relief in the Northern District of New York,
and request an expedited evidentiary hearing. The Corporations did sue
for relief in April 2001 and requested the evidentiary hearing in May
2001. App 112-13a. Respondents Enjoined. Respondents moved to dismiss the complaint for declaratory relief, May 30, 2001, but the district court in New York denied their motion, June 22, 2001. App. 115a, 118a. The district court in New York also enjoined eighteen Respondents – “and those acting in concert with them" – from prosecuting or participating in any other actions "relating to any claims for copyright infringement or related state claims involving the operation of the Internet service known as Aimster." App. 114a. Multiple Actions. Certain Respondents subsequently sued Petitioner personally (and the Corporations), filing 6 actions in all, three in the Second Circuit (S.D.N.Y.), and one each in the Sixth Circuit (M.D.Tenn.), the Ninth Circuit (C.D.Ca.) and the Eleventh Circuit (S.D.Fla.). Respondents also appealed to the Judicial Panel on Multi-District Litigation (“M.D.L.”). In re: Aimster Copyright Litigation, 177 F. Supp. 2d 1380, (J.P.M.D.L . 2001). (“M.D.L. Transfer”) Second Circuit Appeal: Respondents also requested expedited appeal to the Second Circuit Court of Appeals, but that court summarily affirmed the district court’s decision, BuddyUSA v. Recording Industry, 21 Fed. Appx. 52, (2nd Cir. 2001). (“We have considered all of the claims raised by the Recording Industry, and we find them to be without merit.”) Evidentiary Hearing Scheduled. Petitioner asked the district court (N.D.N.Y.) for an evidentiary hearing concerning the anti-competitive multiple actions brought by Respondents, and a hearing was scheduled for August 3, 2001, App. 119a, Docket #40. However, on July 18, the district court stayed all proceedings, pending the M.D.L. decision. App. 119a, Docket #47. M.D.L. Transfer. In
November 2001, the M.D.L. granted jurisdiction, see M.D.L. Transfer, and
transferred to the Seventh Circuit (“the court below”) in the Northern
District of Illinois (“the district court”). Motion for Preliminary Injunction. On
December 21, 2001, for
the first time in any action, and after a delay of seventeen months,
Respondents moved for preliminary injunctive relief. App. 74a ¶ 2. District Court Decision. Petitioner requested discovery of Respondents’ anti-competitive actions and again requested an evidentiary hearing. But on July 18, the district court denied Petitioner the evidentiary hearing, App. 43a, and on September 4, 2002, granted an injunction and ordered Respondents to draft the injunction, App. 81a, and then adopted Respondents’ language for a broad injunction verbatim. App. 82a. Attorney Withdraws. Petitioner did not disclose details of his venture with TransWorld Entertainment until November 2002, when the district court granted his attorney’s motion to withdraw (which cited potential conflict of interest), after denying the attorney’s first motion. But once this key evidence came to light, certain speculative statements of the district court were proven to be plain error, namely: (1) “At issue is a service whose very raison d'etre appears to be the facilitation of and contribution to copyright infringement on a massive scale.” App. 24a. (2) “Defendants manage to do everything but actually steal the music off the store shelf and hand it to Aimster's users” App. 53a Instead, Petitioner proved that he did everything solely to sell music from the shelves of his co-shareholder TransWorld, his very raison d’etre to promote the online retail venture of music and movies, as a review of the record shows. Indeed, Petitioner submitted the actual TransWorld exclusive licensing agreement, (in which TransWorld is referrd to as the “Purchaser”) and some important provisions are: Scope: Aimster will develop a customized version of the software, and the Content is defined as “music, movies and videogames.” Absolute Right to Permit File-Sharing: File-sharing “shall not be deemed to violate the Purchaser’s exclusive rights.” Right to Use and Exclusivity: TransWorld will have the exclusive right both to sell Content and to “exclusive hosting.” First Report of
Compliance, November 12, 2002. Fortunately, on appeal the court below had
before it a clear record of Petitioner’s relationship with TransWorld, and
did not appear to adopt the most egregious of the district court’s plain
error. Of course, this Court would have the same clear record for review. Appeal. Petitioner
provided Internet service to the general public, a number estimated in the
millions. App. 107a. But the broad injunction granted had the effect of
shutting down the Aimster Internet service entirely, App. 2a. On November 26,
even without counsel, Petitioner appealed pro se, and requested an
emergency stay of the unprecedented overbroadness of the injunction. [1] However, the court below denied the stay and affirmed the grant of
injunction in its opinion published on June 30, 2003, In re Aimster, 334
F.3d 643 (“In re Aimster”). B. The decision of the court belowThe court below decided that Petitioner was a provider of Internet service, which it said was “obviously” capable of non-infringing use. App. 13a. Further, upon noting some evidence of infringing use, App. 3a, 11a, the court below disagreed squarely with Ninth Circuit law of contributory infringement, A&M v. Napster, 239 F.3d 1004 (9th Cir. 2001) (“Napster”), App. 10a, while “recognizing of course that the Court must have the last word.” App. 6a. But the court below then clearly ruled that it was necessarily Petitioner’s burden to produce evidence of the “respective magnitudes” of uses, App. 11a, and concluded that, until Petitioner produced such evidence, “We have to assume for purposes of deciding this appeal that no such evidence exists.” App. 18a. The court below thus affirmed, in apparent conflict with this Court’s opinion in Sony v. Universal, 464 U.S. 417 (“Sony”), both the district court finding of “an exceptionally strong likelihood,” App. 80a, of per se contributory infringement and the broad preliminary injunction, App. 23a; and in effect the court below affirmed, too, the district court’s denial of an evidentiary hearing. App. 20a. C. The status of the litigationThe decision of the court below affirmed the
injunction to shut down Aimster Internet service, and imposed on Petitioner
the burden to produce evidence of the actual noninfringing use of Aimster
Internet service. However, while Aimster Internet service is shut down,
Petitioner is precluded from obtaining the very evidence he needs to produce. A related issue was raised early on, when at the beginning of oral argument on the preliminary injunction the district judge asked sua sponte, “And I don’t suppose that there’s any way we can convert this hearing into a hearing on a permanent injunction [ ]?” App. 121a. Petitioner asked counsel to object that there had been no evidentiary hearing; counsel did so. Regardless, Petitioner having been
precluded from producing needed evidence by the injunction itself, the preliminary
injunction becomes permanent, save this Court avails Petitioner of his last
resort, writ of certiorari. D. The harm of the broad injunctionPetitioner intends to submit separately with the Court’s indulgence a Motion to Stay or Expedite in this Court that provides the background of the extraordinary harm of the broad injunction. But in summary, the injunction affirmed by the court below despite Petitioner’s objection to its unprecedented overbroadness (and his attempts to stay enforcement) continues severely to harm Petitioner’s ability personally to deliver any software or provide any Internet service to anyone – lest that party be considered his agent or licensee, and thus, caught up in the broad injunction. This severe harm to Petitioner, named personally, continues even though the Corporations are in liquidation, and – though “not discussed” by the court below, App. 1a – the harm may also exceed the bounds of limited liability, because Petitioner was indemnified as an officer of the Corporations. Now, because of the consequences of the injunction, Petitioner has been forced into personal reorganization (under Chapter 13) – but the harm of the broad injunction threatens even the feasibility of that reorganization plan. The result becomes self-fulfilling: the harm of the broad injunction in effect threatening Petitioner’s ability and his right (likewise the right of other authors, innovators and providers) to be heard by this Court on the issue of that very harm. Petition for Rehearing, Writ of Certiorari. Due to insolvency Petitioner was unable to engage counsel to file his Petition for Rehearing. But Justice Stevens granted (on September 22, 2003) Petitioner’s Application for Extension of Time to File Petition for Writ of Certiorari to November 27, 2003, and so, by the grace of this Court, this Petition for Writ of Certiorari is timely filed. Reasons for Granting the Petition Conflict with Sony. Petitioner seeks writ of certiorari to resolve the apparent conflict of the court below with this Court’s precedent in Sony. Petitioner contends the court below decided that the provision of an Internet service constitutes per se contributory infringement if there is some evidence of infringing use – or else imposed an unprecedented burden to produce evidence of respective magnitudes of uses of Internet service; further, the court below candidly alters the traditional contours of secondary liability. However, as this Court recognized in Sony, to impose secondary liability expansively would permit a single copyright holder to hold entire new industries hostage, Sony, 464 U.S. at 421, 440-42, 446. Ripe for review. Indeed, Judge Posner writing the opinion below recognizes, too, that the issue of potential liability for contributory infringement could result in the shutting down of Internet service or its annexation by the copyright holder, App. 9a – and explicitly recognizes that this Court must have the last word, App. 6a. Thus, this Court’s opinion in Sony may very well be ripe for review in the present case. Great controversy. Most notably, Judge Posner cites copyright scholar Paul Goldstein for support when disagreeing squarely with Ninth Circuit law interpreting Sony, App. 10a. At the same time, many more like Petitioner have recently been sued personally by Respondents in courts all over the country on the same issue of contributory infringement, App. 122a, and courts everywhere may well need guidance. Thus, this Court’s opinion in Sony has now become a source of great controversy, both in the scholarly journals and in the federal courts. Clarification of the public interest in Internet service. The court below also affirmed a broad injunction premised upon prior Supreme Court opinions whose implications regarding the public interest in fair use, free speech and takings of Internet service are in need of clarification. Construction of new statute. Finally, the decision below to deny safe harbor under the Digital Millennium Copyright Act presents an issue of statutory construction of first impression, as well as a serious hindrance to effective administration of the law, affecting the status and property of many. In terrorem effect. There has been no trial in the present case. Should the decision of the Court of Appeals for the Seventh Circuit stand, there is a real danger that the provision of Internet services will be stifled, due to the in terrorem effect of the threat of a lawsuit by parties with the market power of Respondents against authors, innovators, and providers similarly situated to Petitioner. I. The opinion below apparently conflicts with this Court’s opinion in SonyPetitioner endeavors to defend his
interests both artistic and economic as author, innovator and provider. However,
Petitioner also recognizes that this Court decided unambiguously and
correctly in Sony, The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired. Sony, 464 U.S. at 429; U.S. Const., art. I, § 8, cl. 8. In Sony, this Court undertook the task of establishing the controlling principles of the doctrine of contributory infringement against a background of judicial restraint and deference to Congress. Most notably, it emphatically rejected the assertion that merely “supplying the ‘means’ to accomplish an infringing activity” is sufficient to establish liability for the infringements of another. Id. at 436. As the Court recognized, to impose secondary liability so expansively would permit a single copyright holder to hold entire new industries hostage and to veto important technological innovations, a result that would be both unfair and economically inefficient. Id. at 421, 440-42, 446. This Court further said, “From its beginning, the law of copyright has developed in response to significant changes in technology.” Id. at 430. Petitioner’s Aimster Internet service is just such a significant change in technology, one that builds upon features of the Sony VTR a new scrambling technology that this Court had already envisioned in Sony but that had not yet been implemented. See, e.g., Id. at 494. Aimster further builds innovative communications technology into Internet service. App. 4a. While the court below recognized that Aimster Internet service was
“obviously” capable of many non-infringing uses, App. 13a, 16-17a, it nonetheless
imposed duties on Petitioner not found in this Court’s opinion in Sony, and
decided that, unless those duties are fulfilled, the provision of Internet
service constitutes per se contributory infringement if there is some
evidence of infringing use. A. The court below decided that Aimster was obviously capable of noninfringing useThe court below decided that Petitioner (referring to him as “Aimster” or “Deep”) was a provider of Internet service since any of the general public could: [D]ownload[] the software from Aimster's Web site and then register[] on the system [ ] Having done so, he can designate any other registrant as a "buddy" and can communicate directly with all his buddies when he and they are online, attaching to his communications (which are really just emails) any files that he wants to share with the buddies. App. 4a. The opinion below also describes five of its own examples of noninfringing use that Aimster is capable of: 1. Not all popular music is copyrighted. Apart from music on which the copyright has expired [], startup bands and performers may waive copyright in the hope that it will [] create a following that they can convert to customers of their subsequent works. 2. A music file-swapping service might increase the value of a recording by enabling it to be used [] in the music-sharing community []. 3. Users of Aimster's software might form select [] "buddy" groups to exchange non-copyrighted information about popular music, or for that matter to exchange ideas and opinions about wholly unrelated matters as the buddies became friendlier. Some of the chat-room messages that accompany the listing of music files offered or requested contain information or opinions concerning the music; to that extent, though unremarked by the parties, some noninfringing use is made of Aimster's service []. 4. Aimster's users might appreciate the encryption feature because as their friendship deepened they might decide that they wanted to exchange [] forms of expression that people like to keep private, rather than just copyrighted music. 5. Someone might own a popular-music CD that he was particularly fond of, but he had not downloaded it into his computer and now he finds himself out of town but with his laptop and he wants to listen to the CD, so he uses Aimster's service to download a copy. This might be a fair use rather than a copyright infringement, by analogy to the time shifting approved as fair use in the Sony case. [] App. 16-17a. B. The court below noted some evidence of infringing use and concluded there was contributory infringementThe opinion below explained that the principal issue dividing the
parties was left undecided in this Court’s opinion in Sony: The Supreme Court made clear in the Sony decision that the producer of a product that has substantial non-infringing uses is not a contributory infringer merely because some of the uses actually made of the product (in that case a machine, the predecessor of today's videocassette recorders, for recording television programs on tape) are infringing. How much more the Court held is the principal issue that divides the parties; and let us try to resolve it, recognizing of course that the Court must have the last word. App. 6a. But thereafter, the opinion apparently conflicts with this Court’s opinion in Sony by deciding that it is not enough that since the Supreme Court distinguished [ ] between actual and potential noninfringing uses, all Aimster has to show in order to escape liability for contributory infringement is that its file-sharing system could be used in noninfringing ways, which obviously it could be. App. 13a. [Emphasis in original.] Thus, the court below decides that Petitioner’s Internet service is “obviously” capable of noninfringing use. But the court below also decides that a showing that Internet service is capable of non-infringing use – or even in the present case, “obviously” capable – “is not enough.” All five of our examples of actually or arguably noninfringing uses of Aimster's service are possibilities, but as should be evident from our earlier discussion the question is how probable they are. It is not enough, as we have said, that a product or service be physically capable, as it were, of a noninfringing use. App. 17a. Instead, the court decides that “the question is how probable” the non-infringing use is. But having decided that the question is how probable the non-infringing use is, the court below next imposes a novel and substantial burden to show an “estimate of the respective magnitude” of the uses. What is true is that when a supplier is offering a product or service that has noninfringing as well as infringing uses, some estimate of the respective magnitudes of these uses is necessary for a finding of contributory infringement. App. 11a. Thus, the court decides that Petitioner has this “necessary” burden under the following condition: “where a supplier is offering a product or service that has noninfringing as well as infringing uses” – in short, if there is some evidence of infringing use. The court also clarifies its decision by stating that Petitioner’s “necessary” burden – to show an “estimate of the respective magnitudes” if there is some evidence of infringing use – is a kind of “burden-shifting.” Thus, the court again restates its earlier imposition of a novel and substantial burden: if there is some evidence of infringing use, then “the burden of production” is shifted “to Aimster to demonstrate that its service has substantial noninfringing uses.” App. 15a. Of course, by now on purely technical grounds, the court’s decision
must already be reached, because Petitioner has had little or no opportunity
to produce evidence, certainly not a sufficient opportunity to demonstrate
the “estimate of respective magnitudes” of infringing and noninfringing uses,
assuming such evidence is available at an early stage in development. Indeed, the court below concludes that Petitioner has not provided any evidence of actual noninfringing use at all: Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use, let alone evidence concerning the frequency of such uses. App. 17a. Thus, the court below reaches its decision on the technical grounds that since Petitioner has not presented any evidence: “We have to assume for purposes of deciding this appeal that no such evidence exists.” App. 18a. But Petitioner did repeatedly seek the opportunity to produce evidence, as early as April 2001, in his declaratory relief in the Northern District of New York, and again in the Northern District of Illinois, in June 2002. However, Petitioner’s first request was stayed pending the decision of the Judicial Panel on Multidistrict Litigation, App. 119a, and his second request was denied, App. 43a. Moreover, the district court issued its preliminary injunction even though Petitioner had little opportunity to produce evidence in the proceeding other than “a detailed declaration,” App. 26a, footnote 2. In spite of these facts, the court below also decides that an evidentiary hearing was not needed prior to the issuing of the preliminary injunction. App. 20a. In sum, the court below clearly decided that Internet service constitutes per se contributory infringement if there is some evidence of infringing use – unless the provider of Internet service meets the substantial burden to produce evidence of the respective magnitudes of its uses, no matter if (as in the present case) Internet service is obviously capable of noninfringing use; if it is entirely new and there has been little time for its various noninfringing uses to be developed or discovered; if it may be impractical to produce such evidence (because the service offers encryption); and finally, even if the opportunity to produce such evidence has been requested and denied. Therefore, the court below presents the clear issues of law in apparent conflict with this Court’s opinion in Sony: (1) whether Petitioner’s provision of Internet service, obviously capable of noninfringing use, constitutes per se contributory infringement if there is some evidence of infringing use; and (2) if so, whether a broad preliminary injunction should issue. Again, the decision to grant a preliminary injunction while denying a hearing also appears to conflict with this Court’s opinion in Sony. This Court decided to deny permanent injunctive relief only after a lengthy trial, Sony, 464 U.S. at 419, 425. A sub-issue is whether there was sufficient evidence of infringing use, because the court below appears merely to assume that infringing use occurs, without citing to any actual evidence, see e.g. App. 3a. C. The court below relies on clear errorThe court below relies on clear error when it concludes: “Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use, let alone evidence concerning the frequency of such uses.” App. 17a. In reaching this conclusion it relies on a finding of the district court that said: [D]efendants here have provided no evidence whatsoever (besides the unsupported declaration of Deep) that Aimster is actually used for any of the stated non-infringing purposes. Absent is any indication from real-life Aimster users that their primary use of the system is to transfer non-copyrighted files to their friends or identify users of similar interests and share information. Absent is any indication that even a single business without a network administrator uses Aimster to exchange business records as Deep suggests. App. 18-19a, 55a. [Emphasis in original.] However, the district court (and hence the court below) simply erred in ignoring the evidence that Petitioner submitted – even as early as his first request for an evidentiary hearing on May 2001 in the Northern District of New York. With that request Petitioner submitted a declaration from real-life Aimster user Sanford Rosenblum, in which Rosenblum attested at that time that he used Aimster primarily in his law enterprise, App. 114a. The record of the New York court became part of the record of the district court on November 29, 2001, when it was transferred there, pursuant to the Multidistrict Order. App. 120a. A review of the record will show that yet more evidence of substantial noninfringing use was indeed presented. A second clear error is that the court below relies on what it calls “the invitation to infringement that the Supreme Court found was missing in Sony.” App. 15a. But the court identifies this invitation to infringement as a “tutorial,” App. 15a. However, the tutorial cited shows how to play music, and further it was written by anonymous public and posted anonymously to Petitioner’s Web site. The court below simply overlooks these facts. A tutorial on how to play music, written and posted anonymously, plainly does not represent any invitation by Petitioner to infringe. The court also cites as an invitation to infringe “Club Aimster.” App. 15a. But again this club merely provides access to reviews of music that fans might want to buy in the online retail venture, and to a list of its own prediction of popular music, the “Top 40.” Indeed, elsewhere the court itself describes Petitioner’s club as one of its own non-infringing examples: Some of the chat-room messages that accompany the listing of music files offered or requested contain information or opinions concerning the music; to that extent, though unremarked by the parties, some noninfringing use is made of Aimster's service, though it is incidental to the infringement. App. 17a. Yet simultaneously the court also deems the club itself as an invitation to infringe. Because the court below conceded that the fan club is an axiomatic fair use, it thus erred in finding that the same axiomatic fair use was also an element of contributory infringement. If that were the law, then any provider of two Internet services (or more), each an axiomatic fair use, might still be guilty of contributory infringement merely because of the cumulative effect. One fair use might always appear to advertise infringement for the other. To make an analogy to Sony and its Betamax VTR: suppose Sony had innovatively developed the BetaRatings to sample popularity of TV shows, competing with the Nielsen ratings; or suppose, in a second example, Sony had developed Club Beta to allow users to review TV shows and charged membership fees for the access to the Club’s reviews and ratings. These examples would only serve to show that the Betamax itself was capable of yet more noninfringing uses. Finally, in its description of the club, App. 15a, the court also
fails to consider Petitioner’s expert analysis of the workings of the fan
club, which proves that club merely published daily reviews, and contained
direct links only to an online retail site where the music can be legally purchased. The court below decides that the tutorial and the club would have been objectionable to this Court because: Otherwise its opinion would have had no occasion to emphasize the fact (at least the majority thought it a fact--the dissent disagreed, 464 U.S. at 458-59) that Sony had not in its advertising encouraged the use of the Betamax to infringe copyright. Id. at 438. App. 13a. Petitioner thus contends there is a sub-issue of law here for this Court to decide – whether an axiomatic fair use can also double as an element of contributory infringement. Moreover, these three facts of: (1) Rosenblum’s declaration; (2) the tutorial; and (3) the workings of the club are supported by affidavits and documents that are few in number and available for this Court’s straightforward review. Petitioner contends that only clear issues of law matter here. D. The court below alters the traditional contours of copyright protectionFinally, the Seventh Circuit opinion candidly alters the traditional contours of copyright protection law. The court below makes clear that it relies on a theory of contributory infringement derived from the teachings of the Chicago School of Economics: Recognizing the impracticability or futility of a copyright owner's suing a multitude of individual infringers, [] the law allows a copyright holder to sue a contributor to the infringement instead, in effect as an aider and abettor. App. 3a. For support Judge Posner cites a theory by a Chicago School economist that passes critical review on this Court’s opinion in Sony: “The Sony test for contributory copyright infringement—whether the object in question is capable of substantial noninfringing uses—is far too weak and fails to take into account at all the scope of the infringing uses that will result. It is bad third-party copyright policy.” Randal C. Picker, "Copyright as Entry Policy: The Case of Digital Distribution," 47 Antitrust Bull. 423, 424 (2002). Judge Posner’s opinion on contributory infringement also makes clear its reliance on an analogy to tort law: Another analogy is to the tort of intentional interference with contract, that is, inducing a breach of contract. [] If a breach of contract (and a copyright license is just a type of contract) can be prevented most effectively by actions taken by a third party, it makes sense to have a legal mechanism for placing liability for the consequences of the breach on him as well as on the party that broke the contract. App. 3a. [Citation omitted.] But Petitioner finds no such analogy to the tort of intentional interference with contract in this Court’s opinion in Sony. II. This Court’s opinion in Sony may be ripe for review and has become a source of great controversyMoreover, Judge Posner also suggests in his opinion that the issue
of contributory infringement for Internet service (as opposed to a
traditional copying device) is of national importance both for the law and
the market. Liability for contributory infringement, Judge Posner cautions,
“could result in the shutting down of the service or its annexation by the
copyright holders.” App. 9a. Thus, Judge Posner implies that this Court’s opinion in Sony might now be different, based on its review of innovations in Internet service, such as Petitioner’s, and therefore ripe for review in the present case. Most notably, Judge Posner cites copyright scholar Paul Goldstein for support when disagreeing squarely with Ninth Circuit law interpreting Sony: We therefore agree with Professor Goldstein that the Ninth Circuit erred in A&M Records, Inc. v. Napster, Inc., in suggesting that actual knowledge of specific infringing uses is a sufficient condition for deeming a facilitator a contributory infringer. App. 10a. [Citations omitted] Petitioner also submits to the Court’s attention that many more like Petitioner have recently been sued personally by Respondents on the same issue of contributory infringement, including targets like a 12-year-old honors student from New York and a 66-year-old woman in Boston who said that she had never downloaded music. App. at 122a. The Senate has convened hearings on the propriety of Respondents’ litigation, and Sen. Norm Coleman of Minnesota cautions: "I don't want to make criminals out of 60 million kids, even though kids and grandkids are doing things they shouldn't be doing.” App. at 124a. Moved now by the great controversy, federal courts everywhere will look to this Court’s guidance. Thus, this Court’s opinion in Sony has now become a source of great controversy, both in the scholarly journals and in the federal courts. III. The decision below to enjoin is premised upon prior Supreme Court opinions whose implications regarding the public interest in Internet service are in need of clarificationTeenagers and young adults who have access to the Internet like to swap computer files containing popular music. If the music is copyrighted, such swapping, which involves making and transmitting a digital copy of the music, infringes copyright. App. 3a. But at the same time the opinion below makes clear that the general public could “obviously” be engaged in noninfringing use, both when messaging and copying, and gives five examples of the fair use. App. 13a, 16-17a. Thus, the issue of whether, or to what extent, the general public is in fact engaged in fair use or in direct infringement becomes especially crucial to determining the breadth of an injunction, and implicates the Copyright Act. A. Overbroadness and Fair UseAimster objects to the injunction's breadth. But having failed to suggest alternative language either in the district court or in this court, it has waived the objection. We cannot find a case that makes this point expressly, but it is implicit in the general principle that arguments made but not developed do not preserve issues for appellate review. App. 22-23a. But the court below fails to
consider the public interest, and thus conflicts with this Court’s opinion: In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. [] Thus, the Court has noted that "[the] award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff," and that "where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." [] Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-313 (1982). [Citations omitted.] In the present case, there is a colorable fair use defense because the Internet service is obviously capable of noninfringing use, and the strong public interest in fair use would justify withholding relief. Indeed, this Court in Sony cited approvingly the district court’s finding in that fair use justified withholding injunctive relief: Even if it were deemed that home-use recording of copyrighted material constituted infringement, the Betamax could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-air recording. Sony, 464 U.S. at 443. Similarly, the Eleventh Circuit recently withheld injunctive relief where there was a colorable fair use defense because “the Supreme Court has cautioned that such relief may not be consistent with the goals of copyright law in cases in which the alleged infringer of the copyright has a colorable fair-use defense.” SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001); citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 n.10, 114 S. Ct. 1164, 1171 n.10, 127 L. Ed. 2d 500 (1994). Therefore, the overbroadness of the injunction in the present case should be reviewed to protect the public interest in fair use. B. First Amendment ChallengeWe are not impressed by Aimster's argument that the district court had an independent duty, rooted in the free-speech clause of the First Amendment, to make sure that the impact of the injunction on communications over the Internet is no greater than is absolutely necessary to provide the recording industry with the legal protection to which it is entitled while the case wends its way to a conclusion. Copyright law and the principles of equitable relief are quite complicated enough without the superimposition of First Amendment case law on them; and we have been told recently by the Supreme Court not only that "copyright law contains built-in First Amendment accommodations" but also that, in any event, the First Amendment "bears less heavily when speakers assert the right to make other people's speeches." Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769, 788-89, 154 L. Ed. 2d 683 (2003). App. 23a. However, Petitioner understands from the very same opinion of this Court, see Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769, 89, 154 L. Ed. 2d 683 (2003), that first, courts should allow for a First Amendment challenge to copyright protection, Eldred at 789 (“We recognize that the D.C. Circuit spoke too broadly when it declared copyrights ‘categorically immune from challenges under the First Amendment.’”) and that second, courts are specifically directed to consider First Amendment challenges if their decision “altered the traditional contours of copyright protection[,]” Id. But the court below does indeed alter the traditional contours of copyright protection, as Judge Posner makes clear both with the opinion’s new theory of third party liability derived from the Chicago School of Economics and with its analogy to intentional interference with contract. Now, the newly altered contour of copyright protection may well enjoin too broadly, and thus, as this Court recently teaches, the First Amendment bears more heavily when speakers assert the right to make not other people's speeches but their own, see Id. And finally, the court below imposed a duty to monitor – by (necessarily) removing the scrambling of the communications – and thus (necessarily) to prohibit anonymous speech and association. Even if this were possible (and practical), this Court has recognized that, in some situations, the First Amendment protects a speaker's anonymity. See, e.g., Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 122 S.Ct. 2080, 2090 (2002) (municipal ordinance requiring pamphleteers to disclose names implicates "anonymity interests" rooted in the First Amendment); Buckley v. Am. Constitutional Law Foun., Inc., 525 U.S. 182 (1999) (state requirement forcing petitioners to wear identification badge violated First Amendment because it infringed on petitioners' anonymity); McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995) (the right to speak anonymously "exemplifies the purpose behind the Bill of Rights, and the First Amendment in particular"). Further, at least one Circuit has recognized that the First Amendment may protect an individual's anonymity on the Internet. See ACLU v. Johnson, 194 F.3d 1149, 1155, (10th Cir. 1999) (First Amendment protects “communicating and accessing information anonymously.") Publishing on Web sites ought also to be protected by the free-press clause. C. Fifth Amendment Takings ChallengeUnder the well-settled doctrine of "unconstitutional conditions," the government may not require a person to give up a constitutional right -- here the right to receive just compensation when property is taken for a public use -- in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property. Id. at 385. Moreover, the injunction bond (of $500,000) merely compensates (arguably) only for any mistaken loss of Petitioner’s Corporations – and only for equitable damages between the private parties. The same private party bond cannot also compensate nor anticipate the loss – from a taking by the government – of millions who, including Petitioner in personam, built each their own private property atop Aimster Internet service. As this Court said: One of the principal purposes of the Takings Clause is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Id., citing Armstrong v. United States, 364 U.S. 40, 49, 4 L. Ed. 2d 1554, 80 S. Ct. 1563 (1960). While the strong public desire of the government – or here the court below – to improve the public condition by protecting copyright may be laudable, this Court has said repeatedly: [T]here are outer limits to how this may be done. ‘A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’ Id. at 396. [Citation omitted.] And finally, even should the government establish a bond for the taking of private property of millions, the administration of justice as public policy simply cannot bear the internal costs of adjudicating millions of takings. IV. The question presented of construction of a statute, the Digital Millennium Copyright Act, is of first impression and the decision below hinders administration of the Act[T]he definition of Internet service provider is broad ("a provider of online services or network access, or the operator of facilities therefore, "17 U.S.C. § 512(k)(1)(B)), and, as the district judge ruled, Aimster fits it. The court below reasons: “The Act does not abolish contributory infringement.” Id. But equally, a court’s first impression theory of contributory infringement does not abolish the Act of Congress. In the present case, Petitioner was seeking declaratory relief to clarify the DMCA. App. 113a. (whether Respondents “provide proper notice [] pursuant to the Digital Millennium Copyright Act”.) Yet the court below decided that Petitioner unknowingly failed his safe harbor duties under the DMCA. [T]he [AOL] service might find shelter under the Digital Millennium Copyright Act--a question complicated, however, by AOL's intention [ ] of offering an encryption option to the visitors to its chat rooms. App. 9a. However, the fundamental teaching of Sony is that generalized knowledge of infringing uses cannot satisfy the knowledge requirement for contributory infringement where a technology is also capable of substantial noninfringing uses. See Sony, 464 U.S. at 439 (finding no precedent to support liability against Sony based “on the fact that they have sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material.”); see also Napster, 239 F.3d at 1020 (citing Sony as rejecting the proposition that “merely supplying the means to accomplish an infringing activity leads to imposition of liability”); Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988) at 262. (software vendor had “actual knowledge that its product is used to make unauthorized copies of copyrighted material”). Similarly, in the present case, innovation in Internet service
would indeed be hampered if service providers lost their safe harbor whenever
they ‘constructively’ knew that some customers on some occasions would use
their service for a purpose that a court later deemed, as a matter of first
impression, to be not a fair use but an infringement. There has been no trial in the present case. Should the decision of the Court of Appeals for the Seventh Circuit stand, there is a real danger that the provision of Internet services will be stifled, due to the in terrorem effect of the threat of a lawsuit by parties with the market power of Respondents against authors, innovators, and providers similarly situated to Petitioner. The petition for a writ of certiorari should be granted. Respectfully submitted, John Deep Petitioner,
Pro se October 28, 2003 |
[1] Once the Notice of Appeal was filed, the firm of Stoll, Keenon and Park fortuitously agreed to brief and argue the appeal. Similarly, Petitioner may yet engage counsel in this Court once this Petition is filed.