Re: Summers v Tice (and Copyright?)

Thanks to all who contributed to the discussion of how Summers v Tice might apply to copyright law.

Judge Kaplan's opinion in SDNY has been issued: http://eon.law.harvard.edu/openlaw/DVD/NY/opinion.pdf and on pages 82 and 83, footnote 267, he refers to the case:

   267
   Defendants' argument would lack merit even if there were credible proof that other    circumvention devices actually exist and produce results comparable to DeCSS. The    available movies must have been decrypted with DeCSS or something else.. As far as this    record discloses, any such device or technology would violate the DMCA for the same reasons    as does DeCSS. In consequence, this case comes within the principle of Summers v. Tice, 33    Cal. 2d 80, 199 P.2d 1 (1948). Where, as here, two or more persons take substantially    identical wrongful actions, one and only one of which had to be the source of the plaintiffs'    injury, and it is equally likely that one inflicted the injury as the other, the burden of proof on    causation shifts to the defendants, each of which is liable absent proof that its action did not    cause the injury. See 4 Fowler V. Harper & Fleming James, Jr., THE LAW OF TORTS §§ 101-    04 (2d ed. 1996).
   Defendants' efforts to avoid the consequences of this common sense principle are    unpersuasive. They argue, for example, that plaintiffs may not invoke the theory unless they    join as defendants everyone who may have contributed to the injury. Def. Post-Trial Mem.    at 32 n.18 (citing Ex. UZ). It would be difficult to imagine a more nonsensical requirement    in the context of this case. Where, as here, harm is done by dissemination of information over    the Internet, probably by a substantial number of people all over the world, defendants'    proposed rule would foreclose judicial relief anywhere because joinder of all plainly would be    impossible in any one place, and technology does not permit identification of which    wrongdoer's posting or product led to which pirated copy of a copyrighted work.   

Do you agree that Kaplan misstates the case?

In Summers, there were two persons who fired two shotguns; it was equally likely that one, the other, or both fired them and hit the plaintiff. (The count of pellets was consistent with each conclusion; the fact that defendants fired in the general direction proved negligence; the plaintiff was injured. The tort was found, defendants were guilty of negligence, and it remained to divide damages among the defendants haled into court.)

Thus is the judge here wrong in restating the case?--

   "Where, as here, two or more persons take substantially    identical wrongful actions, one and only one of which had to be the source of the plaintiffs'    injury, and it is equally likely that one inflicted the injury as the other, the burden of proof on    causation shifts to the defendants, each of which is liable absent proof that its action did not    cause the injury. See 4 Fowler V. Harper & Fleming James, Jr., THE LAW OF TORTS §§ 101-    04 (2d ed. 1996)."

As Chris points out below, plaintiffs in the DeCSS case do not show any damage, infringement, nor even contributory infringement--they stipulate they cannot do so. They cannot even prove that 2600 has performed any infringement--the case revolves around "trafficking" in a technology, not copyright directly.

Testimony revealed that the MPAA had expert investigators who could possibly determine the source of a circumvented movie. However, if the MPAA could not produce this evidence in court, how would 2600 be expected to do so? It even is likely that the supposed infringing movie copies were produced by a method that had nothing to do with CSS or DeCSS.

It would seem to me that Summers v Tice leads to the conclusion that plaintiffs must first prove a tort, bring into court all defendants who caused the tort--and only THEN would Summers apply to the case, in having defendants rather than plaintiff be the one to divide. It would seem to be obviously unfair to saddle one defendant with the job of finding and prosecuting any other persons if not in court.

And just because Summers might apply in that situation does not mean that the court can leap to the conclusion that plaintiffs have really reached the point where it could apply.

Furthermore, the last argument that "joinder of all plainly would be impossible in any one place" goes against the final judgment, which attempts to do exactly that in the case of hyperlinks to DeCSS.

Any further thoughts on Summers v Tyce?  

On Tue, Aug 29, 2000 at 11:15:20AM -0400, Chris Mohr wrote:
>
>
> I'd add one clarification to Professor Ochoa's clarification. Contributory
> infringement is not relevant to the question of liability under section
> 1201. The DECSS suit, and the injunction flowing therefrom, has to do with
> 1201, which is not an action for copyright infringement. See 1201(b) as well
> (limiting the applicability of copy control technology). The summers v.
> tice discussion (see aug. 17 opinion, note 267) has to do with the scope of
> a permissible injunction and whether that injunction should issue.
>
> In other words, once the violation of 1201 occurs, the irreperable harm
> justifying issuance of a PI is assumed. The burden shifts to the defendant
> to prove that the circumventing technology is not being used; if it can do
> so, the balance of equity shifts to its favor in some degree. The defense
> could not make this showing in Remeirdes.
>
> Many will likely disagree as to whether that principle should apply; it
> seems to me that it should.
>
> Cheers
> Chris
>
> -----Original Message-----
> From: Tyler Ochoa <tochoa[_at_]LAW.WHITTIER.EDU>
> To: Multiple recipients of list <cni-copyright[_at_]cni.org>
> Date: Monday, August 28, 2000 8:02 PM
> Subject: Re: Summers v Tice (and Copyright?)
>
>
> >>>> "Liane Lucietta" <lrlucietta[_at_]hotmail.com> 08/02 12:20 PM >>> wrote:
> >I am not familiar with the current case, but I offer this simplified,
> >stripped-down explanation of Judge Kaplan's analogy.
> ><<<<<
> >
> >Thanks to Liane Lucietta for a cogent explanation of Summers v. Tice and
> other tort-law doctrines for shifting the burden of proof on causation.
> Allow me to add the following clarifying comments:
> >
> >>>>>>
> >To win in a negligence action, the plaintiff must prove the defendant's act
> caused his or her injury. In Summers v. Tice it was impossible for the
> plaintiff to prove this causal connection because it was impossible to know
> WHICH gun, and therefore WHICH defendant's act caused the plaintiff's
> injury. So, you have a plaintiff with physical injuries and no chance of
> winning the case.
> >
> >Because of this, the court shifted the burden of proof to the
> >defendants. Instead of making the plaintiff prove who fired the shot, it
> was up to each defendant to prove they were NOT the one that fired the
> shot -- or both of them would be held liable.
> >
> >Judge Kaplan is suggesting that if it is impossible for the plaintiff
> >to prove that the defendants copied the protected work, causing
> >decrypted movies to be available over the Internet, maybe it is fair
> >to shift the burden to the defendant to prove they did NOT copy the
> protected work and are not responsible for the availability of
> >decrypted movies on the Internet.
> ><<<<<
> >
> >That's not quite correct. The DeCSS case involves contributory
> infringement, not direct infringement. What Judge Kaplan is suggesting (and
> to be fair, he only suggested that the parties be prepared to brief the
> issue) is the following: Assume that plaintiffs can prove that there are
> infringing unencrypted movies available on the Internet. Assume further
> that the plaintiffs can prove that defendants posted DeCSS, but that
> defendants can prove that other people also posted DeCSS. P may be able to
> convince the judge that the copies that were made were infringing (and not
> fair use), but it cannot prove whether those copies were made using the
> defendant's DeCSS, or someone else's DeCSS. Would it be fair to shift the
> burden to the defendant to prove that its posting of DeCSS was NOT used to
> make the infringing copies?
> >
> >>>>>>
> >In my view, it is inappropriate to bring a tort law concept into a
> >copyright infringement suit. Tort law grew out of the industrial
> >revolution, when large numbers of factory workers started getting
> >mangled in machinery. Bodily injury is involved in all the tort
> >cases with which I'm familiar, where the plaintiff is relieved of
> >the burden of proving causation. [snip]
> >
> >The policies underlying copyright protection are very different from
> >those underlying tort law, so I believe it is inappropriate for Judge
> >Kaplan to apply a shifting of the evidentiary burden that is
> >specifically aimed at achieving a fair result in tort cases -- in a
> >copyright infringement case.
> ><<<<<
> >
> >It is true that the precedents all involve bodily injury; but why should
> the principle be limited to bodily injury? It is not enough to make a
> distinction; you have to explain why the distinction makes sense. Tort law
> is not limited to personal injury, although that is its most common
> manifestation. Copyright infringement is a tort.
> >
> >>>>>>
> >In the copyright infringement case, part of the plaintiff's burden
> >is to prove the defendant actually copied (or prepared a derivative
> >work from, etc.) the protected work. Maybe it is difficult for
> >the plaintiff to prove this. However, wouldn't it be completely
> >impossible for the defendant to prove a negative -- that they did
> >NOT copy the protected work, and therefore are not responsible for the
> availability of decrypted movies on the Internet?
> ><<<<<
> >
> >Here, it is the plaintiff's burden to prove that the defendant's conduct
> contributed to direct infringement committed by someone else. The judge is
> suggesting that if it is demonstrated that infringing copies were created
> using DeCSS, then maybe the defendant should have to prove that the
> infringing copies that are introduced into evidence were NOT made using
> defendant's post. It would be difficult, but not necessarily impossible;
> some web sites keeps a list of who has visited them, or who downloaded what.
> >
> >More fundamentally, the burden of proof often plays a role in deciding who
> wins in tort law. Often it is impossible to "prove" causation, so the
> burden of proof will determine who wins. The burden is initially placed on
> the plaintiff who seeks to change the status quo. Whether it is shifted is
> a question of legal policy. It is perfectly appropriate for the judge to
> ask the question whether he should apply those precedents to this new
> situation. I am not expressing an opinion on that question; but I am
> defending his making the inquiry.
> >
> >Tyler T. Ochoa
> >Associate Professor
> >Whittier Law School
> >
> >

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf