[Infowarrior] - CSTLR: What's In A Copyright? The Forgotten Right "To Authorize"

[Richard Forno]

What's In A Copyright? The Forgotten Right "To Authorize"

by Aden Allen

9 Colum. Sci. & Tech. L. Rev. 87 (2008)

(Published February 19, 2008)

Abstract

For years, Congress and the Judiciary have wrestled with the problem of how
to properly protect intellectual property rights while balancing them
against the common good. One of the most active areas is that of indirect
liability. The Patent Act of 1952 expressly codified liability for
inducement and contributory infringement. However, the Copyright Act of 1976
failed to do the same. What should be made of Congress' codification of
indirect liability in patent but not copyright law? This Note will argue
that indirect liability for copyright infringement can be derived from the
1976 Act's use of the phrase "to authorize" when describing the exclusive
rights of a copyright holder. This Note will consider the development of
indirect liability in patent and copyright law, and compare the
jurisprudence of America with that of Australia and England. Borrowing from
the English and Australian copyright systems, this Note proposes that an
appropriate authorization test would hold a party liable for (1) failing to
take reasonable and effective measures to curtail infringement while (2) not
enabling copyright owners to monitor infringement themselves. An additional
authorization test would hold a party liable for granting or purporting to
grant the authority to do an act exclusively reserved to the copyright
owner. To highlight potential uses and effects of an authorization standard,
this Note reviews the Supreme Court's Grokster decision and compares two
recent Ninth Circuit decisions. The Note concludes that the proposed
authorization standard comports with the Copyright Act of 1976. However, the
Note also suggests the need for Congress to provide greater guidance in the
area. 

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