Page:Fair Circumvention.djvu/35

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be construed, at the outset, thus poses a substantial challenge to the notion that the courts in copyright cases may simply begin and end their inquiry by parsing the statute.[1]

Indeed, the legislative record reveals a number of instances in which Congress in the 1976 Act intended to defer to prior judicial practice, rather than providing new rules that would override what the courts had previously done. The areas in which Congress deferred to prior judicial practice include the core statutory requirement of originality[2] and the reach of protection for depictions of useful articles.[3] Similarly, although the Copyright Act (unlike, say, the Patent Act[4]) omits any express provisions making persons other than direct infringers liable for copyright infringement,[5] the courts have consistently applied common-law principles of secondary liability in the copyright context.[6] This judicial development of secondary liability for

  1. To be sure, the Copyright Act includes a number of very detailed provisions that Congress clearly intended to cover the waterfront within their respective spheres. See Patry, supra note 186, § 2:8 (citing 17 U.S.C. §§ 111, 112, 114, 115, 119, 122, and 512 as examples of statutory provisions that aim to “micromanage” the courts). Most of the statute, however, is not so specific.
  2. 17 U.S.C. § 102(a) extends copyright protection to “original works of authorship.” 17 U.S.C. § 102(a) (2006). The legislative history declared that Congress “purposely left [this phrase] undefined, . . . intend[ing] to incorporate without change the standard of originality established by the courts under” the prior statute. H.R. Rep. No. 94-1476, at 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664.
  3. 17 U.S.C. § 113(a) recognizes that a copyright holder’s exclusive reproduction right over a pictorial, graphic, or sculptural work “includes the right to reproduce the work in or on any kind of article . . . .” 17 U.S.C. § 113(a) (2006). Subsection 113(b), however, offers the caveat that, where depictions of useful articles are concerned, the statute “does not afford . . . any greater or lesser rights . . . than those afforded to such works under the law . . . in effect” before the effective date of the Copyright Act of 1976. Id. § 113(b).
  4. See, e.g., 35 U.S.C. § 271(b)-(c) (2006) (establishing liability for inducing infringement of patent or for contributory patent infringement).
  5. See 17 U.S.C. § 501(a) (2006) (providing that “[a]nyone who violates any of the exclusive rights of the copyright owner” shall be directly liable for copyright infringement); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984) (observing that, unlike the Patent Act, “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another”).
  6. See, e.g., Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261 (9th Cir. 1996) (“Although the Copyright Act does not expressly impose liability on anyone other than direct infringers, courts have long recognized that in certain circumstances, vicarious or contributory liability will be imposed.”); id. at 261-64 (explaining theories and elements of vicarious and contributory infringement of copyright).