We have seen who was an intended infringer in 1978, and how a copyright owner’s rights were limited through what Congress considered the extent of rights based on the technology at the time. There are several ways that this can be accomplished, two of which will be discussed. One method to define infringers and draw limits today is to use the presuppositions on copyright rights when the 1976 Act was enacted. Another is to account for new technologies in a way that maintains the balance of rights in a manner faithful to copyright’s basic purpose via a dynamic interpretation of the statute.
Regarding the former—defining infringers and drawing limits using the presuppositions on copyright rights when the 1976 Act was enacted—Lawrence Lessig, in his seminal work, Fidelity in
Translation,205 argues for an overall new approach to maintain fidelity to
the constitution in the advent of new technology,206 through what he
calls “a translation to accommodate a change in nonlegal presuppositions.”207 Lessig provides several illustrations of his
“translation” approach. One involves the “Fourth Amendment protect[ion of] the right ‘of the people to be secure in their persons, houses, papers, and effects’ against unreasonable ‘searches and seizures.’”208 The amendment was limited to physical invasions of
property, but at the time of its ratification in 1791, “given the crude state of surveillance technology, the only possible invasions were physical. Thus, in practice, the amendment protected against the vast majority of possible state invasions.”209
By 1928, when Olmstead v. United States210 was decided,
the technology of possible state invasion had of course changed. New technology permitted the state to extract all the information it could ever want without ever crossing trespass law’s barrier . . . the practical effect of a protection that extended only against physical invasions was
very little at all.211
Lessig uses Brandeis’ dissent in Olmstead to illustrate the concept that, regardless of technological advancements, we should protect against
205. Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1239-40 (1993) 206. Id. at 1238.
207. Id.
208. Id. (citing U.S. Const. amend. IV.).
209. Id.
210. 277 U.S. 438 (1928).
new risks of invasion not contemplated when the Fourth Amendment was ratified:
[T]o preserve the same amount of protection originally afforded . . . the protections of the Fourth Amendment must be applied to acts that fall outside the literal scope of the test. If, counting eavesdropping, the amendment protected citizens against ninety percent of the practical means of governmental invasion when adopted, so too must it be ap-
plied to protection against ninety percent of those means today.212
Thus, with regard to Fourth Amendment privacy protections, Lessig argues that we should have the same security in our homes today that we did in 1791.
Lessig’s concept of translation can be applied to our intended infringer issue, and how new technology is catching infringers in a net never meant for them. If we use Lessig’s theory of translation, we would take as our starting point the 1976 Copyright Act and determine what rights and limits copyright owners had on January 1, 1978.213 Copyright
owners would have the same rights and protections that they had in 1976, and no more. The copyright rights owners could exert would be limited to the extent it existed on that date and infringers would be those intended as infringers on that date. This would curb who was an intended infringer to those who were intended to be caught in 1978. Personal copying for media shifting was not infringement at that time, and would thus limit liability to personal copiers today.
As noted previously, as second way to draw limits is to account for new technologies in a way that maintains the balance of rights in a manner faithful to copyright’s basic purpose, via a dynamic interpretation of the statute. As the Supreme Court stated in Aiken, “[w]hen technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.”214
This necessitates interpreting the statute in a manner that ensures copyright’s “balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” 215 It is impossible to legislate fast
enough to account for newer technologies in almost any area of law as soon as a law is enacted. At any moment there may be unintended
212. Id. at 1240.
213. The date of implementation of the Copyright Act of 1976.
214. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). 215. Id.
consequences due to newer technology developed after the law became effective and before it can be amended to account for the advancement. To remediate the effect of this phenomenon to avoid unintended consequences—such as the capture of our unintended infringers— effectuating the intent of the law means that courts may have to interpret statutes dynamically rather than statically.216 Understanding how newer
technology maps to what was in place when a law was enacted may require courts to avoid a static interpretation of the statute, but rather apply the current technology and circumstances and construe the law dynamically so that its purpose is not eviscerated. New technologies such as three-dimensional printing would also be accounted for in this paradigm, for both the infringing and noninfringing uses.217
Infringement actions against unauthorized reproduction for commercial use have been part of copyright law since the first Act of 1790.218 Thus,
a finding of infringement is not an unintended consequence for this unauthorized use; one does not even need to look at the statute beyond its ordinary meaning when enacted or translate to the scope of rights that copyright owners held in 1978 to find that using three-dimensional printing to make a reproduction of a copyrighted work without authorization would be an infringement.
Three-dimensional printing files used to create a copyrighted work may also fall within the requirements to be copyrightable under Section 102.219 Using a translation model mapping to the time of the 1976 Act’s
effective date220 would thus ensure that liability under the law would
capture only those who were intended infringers, based on the rights of
216. See generally William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U.PA. L. REV. 1479 (1987).
217. The devices themselves have substantial non-infringing uses, and would therefore qualify under Sony and Grokster as immunizing the manufacturers from infringement liability. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984) (“[T]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.”).
218. Copyright Act of 1790, Sec. 1 (“[I]f any other person or persons . . . shall print, reprint, publish, or import . . . without the consent of the author or proprietor thereof. . . then such offender . . . shall forfeit all and every sheet and sheets, being part of the same. . . to the author or proprietor of such map, chart, book or books, who shall forthwith destroy the same.”).
219. See Osborn, supra note 197, at 825-35 (arguing and describing how CAD files which
satisfy the originality requirement and “represent nonessential, creative expression”—that is, are not categorized as “useful articles”—can be considered either a “literary work” or a “pictorial, graphic [or] sculptural work” and thus be copyrightable under Section 102(a) under the Copyright Act.). The method itself would not be copyrightable, as it runs afoul of Section 102(b) as a method of operation. See id.
copyright owners at that time.
IV. “ONE SIZE FITS ALL”MISFITTED STATUTORY DAMAGES
We must also examine whether new classes of infringers should face the same monetary remedies that were originally intended for commercial bootleggers and pirates. This leads to our next discussion: whether the Due Process clause precludes these large punitive damages awards, and whether it is up to Congress to modify the statutory damages section of the Copyright Act away from a single, monolithic remedy and instead create a tiered remedy similar to both previous iterations of the Copyright Act221 as well as how other nations have
chosen to address different types of intended infringers.
During the latter part of the twentieth and the early twenty-first centuries, the recording industry energetically pursued individuals who downloaded songs from unauthorized sites,222 and courts routinely found
the defendants liable for infringement, who then faced astronomical damages. Despite challenges to the validity of multimillion-dollar damages for unauthorized file sharing, federal courts continue to find such remedies constitutional.223