Page 61 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 2 Copyright in the Pre-Internet Age: An Intermediary-oriented Approach
An Intermediary-oriented Approach

‘contributory infringement’ approach was what publishers had used to sue film producers
208
for jointly infringing the public performance right with the film exhibitors. However, this
time, the Supreme Court, reversing the Ninth Circuit Court, sided with new technology on
the ground that although VCRs could be used to infringe copyright, they were also capable
of non-infringing uses such as recording videos to watch at another time. This became
known as the time-shifting purpose. Jane Ginsburg criticised this decision, contending it
209
was inconsistent with earlier copyright law that applied ‘permitted-but-paid’ rules to new
210
distributors.
Even though the Supreme Court failed to uphold the film companies’ petition to control
the new distribution channel, film companies could still profit from the new distribution
technology. Audiences still needed the original film to record even though they delayed the
time to watch it, and film companies could still control the distribution of the films. The
statistics submitted by Sony also showed that VCR promoted the consumption of films
because consumers could watch them when and where they wanted to. 211
Because the Supreme Court’s fair-use decision was made before the hearing on the film
212
companies’ proposal to Congress, the proposal automatically became moot. From then
on, VCRs could be sold and used freely without film companies’ permission. Although the
film companies failed to incorporate VCR into copyright, ten years later their counterparts
in the music field succeeded by extending control to the DAR technology through the 1992
AHRA. 213
4) DVDs and DeCSS: The 1998 DMCA
Failing in their battle against VCRs, the film studios regained control over the next
new distributing technology, DVDs, which emerged in the early 1990s. Learning from their
lessons with VCRs, filmmakers recognised the need to control the new technology before it
became widely used in the market. Hence, joining the major technology enterprises and
214
media and software companies, filmmakers reached an agreement to equip each DVD with
215
a digital lock, the Content Scrambling System (CSS). DVDs would require a software
key to unlock them and only authorised consumers could obtain the key. After enforcing
the technological measures, filmmakers lobbied the Congress to secure legal recognition of

208 Ibid 435; Section 2.3.3.1.
209 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 423 (1984).
210 Jane C Ginsburg, ‘Fair Use for Free, or Permitted-but-Paid’ (2014) 29 Berkeley Tech Law Journal 1, 2.
211 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 427 (1984).
212 Bill Holland, ‘Seek “Betamax” Audio Tee Tie’ Billboard (New York, 31 July 1982) 54; Russell Sanjek, American Popular
Music and Its Business: The First Four Hundred Years. Volume III: From 1900 to 1984 (Oxford University Press 1988)
111. Yahong Li and Weijie Huang, ‘Taking Users’ Rights Seriously: Proposed UGC Solutions for Spurring Creativity in the
Internet Age’ (2019) 9 Queen Mary Journal of Intellectual Property 61, 67.
213 Section 2.3.2.4.
214 Decherney (n179) 179.
215 Ibid.

• 47 •