A Legal Blog by Aaron | Sanders, PLLC


Does Actual Knowledge Kill or Merely Suppress the Sony-Betamax Rule?

Court: Actual Knowledge Kills Sony-Betamax Dead, and That Might Make a Difference

Hey, I sort of called it. In my last blog post, I embarked on a journey of self-discovery in which I learned that ISPs were not effectively immune to claims for constructive copyright infringement. In this journey, I had to come to terms with the real possibility that the Sony-Betamax rule—that a product cannot create contributory copyright liability if it has substantial non-infringing uses—applies only where the claim is based on “constructive” knowledge (i.e., you should have known, as opposed to, you knew). This explained something that had puzzled me: why was Cox Communications even liable for the claims of contributory copyright infringement brought by Rightscorp? After all, internet service has a tremendous number of non-infringing uses. The answer (in my analysis) was: because Cox had actual knowledge of its customers’ infringement, for the same reason its repeat-infringer policy was such a hilarious shambles.

Actual Knowledge + Current Continuing Relationship

Earlier this week, the court in the Cox Communications case ruled on some post-judgment motions and followed very much the same reasoning in denying Cox’s motion challenging the jury verdict. Regarding the application of the Sony-Betamax rule, the court this…

A Sony Betamax video tape recorder. Weighed about 36 pounds. Copyright owners tried to stop it & lost (barely). Ended up giving copyrighted properties a second life as home video. Ironic, dontchya think? Groundbreaking. Lost out to JVC's VCR. Then VCRs stopped being a thing. Time marches on.

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Polyvoracious: The Sony-Betamax Rule Lives!

So Why Didn’t it Apply to Cox Communications?

One thing that had been gnawing at me about Rightscorp’s victory over Cox Communications: why didn’t the Sony-Betamax rule apply to Cox Communications’ plain-vanilla ISP service? The answer, I realize now, is obvious, but only after you’ve stepped back for a moment. A recent decision where the rule did apply helps to explain why Cox Communications wasn’t eligible, although plain-vanilla services are generally going to be covered by Sony-Betamax. It’s the same reason why Cox Communications managed to lose its DMCA safe-harbor protection: its colossally horrible implementation of repeat-infringer policies.

The Common Sony-Betamax’s Natural Habitat

As typically explained, the Sony-Betamax rule is that providers of a service are not liable for contributory copyright liability merely for providing the service, if the service has “substantial non-infringing uses.”

In BWP Media USA v. Polyvore, the owner of copyrights in photographs sued Polyvore, the operator of a website that “allows users to create free online accounts to upload, create and share photographs and other images.” But that’s not all Polyvore does. Polyvore also “offers a online tool called the ‘Clipper’ that allows users to ‘clip’ images from other webpages and collect these images on Polyvore’s platform.” The use of…

Stand back a bit, and you begin to see the problem. Photo by Bit Boy, of a 2006 installation by Banksy titled "Barely Legal," licensed under Creative Commons 2.0 License. (This is meant to be a statement about global poverty. I guess the joke is that it's not that obvious. Also, that's a real elephant.

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