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55 Case W. Res. L. Rev. 963 (2004-2005)
Comment: Copyright's Public-Private Distinction

handle is hein.journals/cwrlrv55 and id is 973 raw text is: COMMENT: COPYRIGHT'S PUBLIC- PRIVATE DISTINCTION Julie E. Cohent I would like to focus my remarks on the question of user privacy. In her fascinating paper for this Symposium, Professor Litman ex- presses a guarded optimism that in its forthcoming decision in MGM v. Grokster,' the Court will retain the staple article of commerce doc- trine that it first articulated in Sony.2 She opines, however, that the user privacy strand of the Sony decision is a lost cause. I don't be- lieve that it's possible to retain the staple article of commerce doctrine while abandoning user privacy. At least in the realm of networked digital technologies, the two concepts are inextricably linked. To explain why, I would like to begin by examining a concept that I'll call copyright's public-private distinction. This distinction does not concern the presence or absence of state action, but rather the pres- ence or absence of conduct triggering legal accountability. Copyright's public-private distinction used to be clearly stated on the surface of the law and transparently visible in the law's operation. For users, public performances and displays incurred liability; private performances and displays did not.3 For copyright owners, publica- tion without notice forfeited copyright; private distribution without notice did not.4 For both users and copyright owners, then, conduct in public was distinct from conduct in private, and conduct in public had t Professor of Law, Georgetown University Law Center. Thanks to Matthew Windsor for research assistance. Portions of this essay are based on remarks prcscnted at a conference on copyright and privacy sponsored by the John Marshall Law School in November 2004. See Julie E. Cohen, et al., Copyright and Privacy-Through the Privacy Lens, 4 J. MARSHALL REV. INTELL. PROP. L. 273 (2005). I Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 380 F.3d 1154 (9th Cir. 2004), cert. granted, 125 S. Ct. 686 (2004). 2 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984); see Jessica Litman, The Sony Paradox, 55 CASE W. RES. L. REV. 917, 958-59 (2005). 3 See 17 U.S.C. § 106(4)-(5) (2000). 4 See 17 U.S.C. §§ 401-406 (1988); see also 2 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §§ 7.02-.04, 7.12 (2004).

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