Curb Makes Better Sense Than Subafilms
Curb Makes Better Sense Than Subafilms
Curb v. M.C.A. correctly criticizes the holding in Subafilms because that decision “ignores [the] economic reality and the economic incentives underpinning the Copyright Clause designed to encourage creation of new works.” Subafilms stands for the proposition that Congress merely intended to invoke notions of contributory infringement by the inclusion (within the Copyright Act of 1976) of language providing in section 106 that “the owner of copyright under this title has exclusive rights to do and to authorize any of the following…” There is direct support for this proposition in the legislative history of the Act.
The exclusive rights accorded to a copyright owner under section 106 are ‘to do and to authorize’ any of the activities specified in the five numbered clauses. Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance. (H.R. Rep. 94-1476, Sept. 3, 1976).
Because the House Report directly states the legislative intention to clarify questions as to liability of contributory infringers, the holding in Subafilms cannot be attacked as a misinterpretation of legislative intent. The problem with the holding in Subafilms it undermines the constitutional goals of Copyright law in those situations where actual infringement occurs overseas that would not or could not occur but for the authorization obtained or transmitted from within the United States. Under Subafilms, a proximate cause for infringing conduct (the authorization) occurring within the United States is perfectly legal so long as the infringement is not within the territorial borders of the United States. This cannot be good policy and cannot be squared with the Constitutional goal of incentivizing the creation of original works. For instance, let’s say that a person, D owned land in Canada that borders the United States and D also owned the land adjacent within the United States as well. D sets up a huge screen and giant speakers for sound, buys consumer copies of Copyrighted works and proceeds to lawfully project the films onto the screen. D then charges Canadians for access to his Canadian property from which the films can be seen and heard. On the United States side of D’s property, there is no violation of 106(4) since he has not taken any liberties with the exclusive right “in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;” D could argue that the screening on his private property is not public since the public does not have access to his U.S. property. The paying Canadian public is enriching D considerably so he conceives a business plan which he calls Border Cinema. He screens films on the border and can avoid paying licensing fees for public performance. All he needs is to purchase a consumer copy and he can avoid paying hefty fees to the copyright holders. Furthermore, Canadians are free to film the screening of their own accord and make their own copies! After all, D is not in violation of any of provision of 17 U.S.C.A 106. It seems that under Subafilms this would be perfectly legal. Remember that Subafilms states: ‘Because the copyright laws do not apply extraterritorially, each of the rights conferred under the five section 106 categories must be read as extending “no farther than the [United States’] borders.” ‘ So 17 U.S.C.A 106(4) would limit public performance of copyrighted works “no farther than the United States borders.” Granted this fictional international Drive-in Theatre scenario is farfetched but it does illustrate a flaw in reading the reach of the provisions of Section 106 to extend only to the borders of the U.S. when we have a culprit right here in the U.S. whose conduct is the but-for cause of the infringing acts elsewhere.
This is not to ignore the legitimate concern Judge Nelson expresses in Subafilms that “an extension of extraterritoriality might undermine Congress’s objective of achieving “ ‘effective and harmonious’ copyright laws among all nations.”” However in the scenario above, there is no reason to fear for that objective merely by attaching liability for D’s actions that occur within the United States. We have implied authorization that occurs within the United States. We have copying on the Canadian side by drive-in moviegoers and yet, under Subafilms, the fact that the copying is done in Canada rather than in the U.S. completely exonerates D! However unlikely the scenario, Subafilms does not make sense when we have extraterritorial infringing conduct that could not occur but for D’s actions authorizing the infringement from within the U.S..
Curb v. MCA makes better sense than Subafilms. In Curb Judge Wiseman states: “A U.S. court, for example, could grant injunctive remedies under U.S. law for acts that commence a course of infringing conduct in the United States, for example, acts of authorizing or copying, without regard for whether eventual exploitation is to take place at home or abroad. Such an injunction would be justifiable if it forestalled piracy, whether at home or abroad, but did not risk interfering with such relief as might be granted under foreign laws for exploitation abroad.” As long as there was actual infringement and as long as that infringement could not have occurred but for the actions of a person while he is within the United States, it is difficult to see why the concerns raised in Subafilms regarding potential threats to the goal of “harmonious copyright laws among all nations” should come into play. United States law is not foisted on foreign nationals merely because it prevents infringing conduct by enjoining the authorization of that conduct inside the U.S..
Furthermore, infringement based on territorial notions of jurisdiction makes little sense when it is clear that infringers are now capable of obtaining digital access from virtually anywhere. For the same reason that we don’t force copyright holders to track down every individual direct infringer, we should not limit liability to those cases where an infringer can be caught red-handed within U.S. borders – especially when the infringing extra-territorial conduct could not occur but for authorization from within the United States. Liability for contributory infringement allows copyright holders to attack the source of the unlawful activity while the holding in Subfilms would frustrate the ability of copyright holders to maintain effective protection of their work when the infringement happens to occur outside of the United States.