Fixing through Legislative Fixation: A Call for the Codification and Modernization of the Staple Article of Commerce Doctrine as It Applies to Copyright Law

INTRODUCTION I. THE HISTORY OF THE STAPLE DEFENSE A. Early Copyright Cases Tackle Dual-Use Technologies 1. Sony: The Technology of Time-Shifting a. The District Court's Opinion: The Staple Defense Sneaks into Copyright Law b. The Ninth Circuit's Opinion c. The Supreme Court's Opinion: Mr. Rogers Sides with Technology and Five Justices Side with Mr. Rogers i. Justice Stevens's Dicta ii. Justice Blackmun's Dissenting Opinion 2. RCA Records: Controlling the Use of Copyrighted Works 3. Vault Corp.: The Defendant Wins One a. The District Court's Decision b. The Fifth Circuit's Decision B. The Next Generation of Infringement: The Peer-to-Peer Network Cases 1. Napster: Sampling and Space-Shifting a. The District Court's Decision b. Chief Judge Patel's Dicta c. The Ninth Circuit's Opinion 2. In re Aimster: The Mere Potential for Nonfringing Use a. The District Court's Opinion b. The Seventh Circuit's Opinion c. Judge Posner's Dicta 3. Grokster: Promoting Use for Infringement a. The District Court's Opinion b. The Ninth Circuit's Opinion c. The Supreme Court's Opinion i. The Majority's Opinion ii. Justice Ginsburg's Concurring Opinion iii. Justice Breyer's Concurring Opinion II. A LEGISLATIVE PROPOSAL A. Text of This Author's Proposed Bill B. Legislative Intent of Proposed Bill 1. Bright-Line Rules Are Better than Uncertain Broad Principles 2. Balancing the Policies of Copyright Law 3. The Proposed Legislation Does Not Abandon the Weight Given to Potential Uses 4. Specific Times, Limits, and Infringement Ratios Define Whether or Not Technologies Are Socially Desirable 5. Other Proposed Legislation Has Not Addressed the Issues Addressed in the Legislation Proposed Here 6. The Proposed Legislation Is Consistent with the Aforementioned Case Law CONCLUSION INTRODUCTION In 1979, a district court applied an affirmative defense to secondary patent infringement in a copyright infringement case. (1) The court did so in order to protect a technology developer from copyright liability caused by third parties using the developer's product in an infringing manner. (2) The court's intention was to avoid quashing a new technology that was capable of many noninfringing uses and, thus, to prevent an inequitable infringement judgment against an innovator solely because individuals, outside the developer's control, used the product illegitimately. (3) Over the next twenty-six years, district courts, courts of appeal, and the U.S. Supreme Court have misinterpreted and disagreed with each other's decisions--and even at times with their own decisions--over how to apply relevant principles of patent law in copyright cases, that is, to strike the proper balance between protecting copyright holders' rights without restricting innovation. (4) As the courts have battled over this issue, billions of dollars of infringement have occurred using new technology mediums, and once promising start-up companies have gone bankrupt because of copyright infringement judgments against them. (5) As Justice Fortas so wisely said in addressing the new technology of cable television: [T]he fact that the Copyright Act was written in a different day, for different factual situations, should lead [the judiciary] to tread cautiously here. Our major object, I suggest, should be to do as little damage as possible to traditional copyright principles and to business relationships, until the Congress legislates and relieves the embarrassment which we and the interested parties face. (6) Unfortunately, the courts have not tread with caution and have done much damage to the balance of copyright's competing policies, which has left both copyright owners and technology innovators facing great uncertainty. …