Would Twitter Be Liable For Links To Infringing Material?

from the questions,-questions,-questions dept

One of the issues that bothers many folks who pay attention to copyright issues is the growing belief by many copyright supporters that simply posting a link to copyright infringing material could itself be considered infringement. From a technical standpoint, this makes little sense. As you copyright geeks should know, US copyright law grants some specific "exclusive rights" to copyright holders in Section 106: to reproduce, to prepare derivative works, to distribute, to perform and to display (with some added specifics based on what kind of work it is). Still, I'm at a loss to figure out what linking to a work does? It's not reproducing the work. It's not preparing a derivative work. It's not distributing the work. It's not performing or displaying the work. So what part of copyright law does linking violate?

Anyway, the reason why I'm asking this now is that it appears that Twitter is suddenly getting swamped with DMCA takedown notices lately. I only discovered that after a recent TorrentFreak article about the top DMCA takedown senders as compiled by ChillingEffects.org. What struck me, in Wendy Seltzer's summary, was that she mentioned that the largest sources of DMCA takedowns are "Google, Yahoo, Digg, and most recently, Twitter."

The addition of Twitter struck me as odd. After all, how much copyright infringement can you do in 140 characters. Nearly two years ago, we had discussed the question of whether or not those "tweets" themselves could be copyrighted (which could lead to legal questions when people "retweet" your messages). We had trouble believing that fair use wouldn't apply to messages. Then, this past April, we had an interesting discussion after a guy named JP was upset that Twitter deleted a tweet of his that was merely a link to his own blog post, which discussed a new album that had leaked, and included (in the blog post, not on Twitter) a link to one song that was already widely being linked to on music blogs, including Pitchfork, as well as a link to Amazon where people could buy the album. The copyright holder had issued a DMCA takedown on the Twitter message, which we took to be an abuse of the DMCA process. Nothing in the tweet was infringing. Heck, you could argue that nothing on the blog post was infringing.

However, in looking down the list of DMCA notices to Twitter, the vast majority of them appear to be copyright holders complaining about tweets that link to their material hosted elsewhere. I did see one that involved a background image, which is a bit more understandable as a copyright issue, but I'm a bit troubled by the massive numbers of takedown messages solely on links. Why not just issue the takedowns on whoever is actually hosting the material? Targeting links just seems fraught with potential problems and it's still not at all clear to me that links, themselves, are really infringing.

Of course, it's likely that Twitter is removing the tweets in question in order to protect itself from liability. But I'm wondering if anyone actually thinks Twitter would be liable for copyright infringement if it didn't do that.


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  1.  
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    :Lobo Santo (profile), Dec 28th, 2010 @ 11:59am

    Liability?

    Ah, I see.

    Apparently the definition of "liability" has recently been changed to "the death of sensibility"

    ; P

     

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  2.  
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    Gabriel Tane (profile), Dec 28th, 2010 @ 12:07pm

    Sadly Enough

    I can almost see the logic here. I already guess that some will argue the links themselves are distribution.

    However, I would say it's more of a distribution of a distribution. If I'm just pointing to an area where you could break the law, am I liable for you breaking the law when you get there?

     

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    Richard Thomas, Dec 28th, 2010 @ 12:14pm

    Logically speaking.

    Suppose the copyright holder of a work made it available online and someone linked to that in a twitter message. Is that infringing? Any argument (however tenuous) I can think of that it is/is not infringing applies equally well if the linked work was made available by someone other than the copyright holder. That's a logical argument though and logic rarely plays a part in such things. :-)

     

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    jfgilbert (profile), Dec 28th, 2010 @ 12:18pm

    That's fair

    And, by the same logic, the post office should be liable for every ransom note it delivered, any stolen or illegal item it transported, and every letter that was transmitted as part of a scam or swindle.
    That should keep them and a few lawyers busy for a while.

     

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  5.  
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    Revi (profile), Dec 28th, 2010 @ 12:19pm

    Re: Sadly Enough

    If I sell road maps and you buy one and use it to find a bank to rob, am I complicit?

     

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  6.  
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    :Lobo Santo (profile), Dec 28th, 2010 @ 12:20pm

    Re: Logically speaking.

    Quite right. Law students must prove and disprove god on alternate days...

    Or, to support your statement: Logic can be used to prove or disprove anything, depending upon the premises used. Using logic, one can prove that all penguins are unicorns, women are money, and the moon is purple. However, in order to be useful logic must be rooted in reality.

     

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  7.  
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    Anonymous Coward, Dec 28th, 2010 @ 12:31pm

    But I'm wondering if anyone actually thinks Twitter would be liable for copyright infringement if it didn't do that.

    The media cartels, backed by the well-paid US government, can do whatever they like. They can say anyone is liable for anything, and throw money at lawyers and lobbyists until it sticks.

     

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  8.  
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    Hulser (profile), Dec 28th, 2010 @ 12:34pm

    Recipient, not source

    the largest sources of DMCA takedowns are "Google, Yahoo, Digg, and most recently, Twitter."

    Just to clarify, the linked article is actually saying the opposite, that these parties are the largest recipients of DMCA takedowns. Twitter isn't issuing any takedown requests; they're merely passing on information about the takedowns they receive to ChillingEffects.org.

     

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  9.  
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    V, Dec 28th, 2010 @ 12:35pm

    Re: Sadly Enough

    No... distribution is distribution. If I TELL you where a beer distrubutor is, it's not the same as me distributing beer.

    If I tell you that if you go to such-and-such place because they don't card everyone, that's not serving you alcohol.

    Welcome to the entitlement, "you're to blame" culture.

    "I can almost see the logic here. I already guess that some will argue the links themselves are distribution.

    However, I would say it's more of a distribution of a distribution. If I'm just pointing to an area where you could break the law, am I liable for you breaking the law when you get there?"

     

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    PW (profile), Dec 28th, 2010 @ 12:35pm

    Links more generally

    It would seem to me that this is actually a broader question immaterial to Twitter specifically. Are links on any Web page to infringing material, themselves infringing on copyright? I don't know the answer, but it would seem absurd if the answer was yes. Further, I would ask how far does the link chain have to be before it's considered not infringing? In other words, if I link to a page that links to a page that links to a page that has infringing material, is my link considered infringing?

    Ah, starts to remind me of the ol' fallacy, "if god can do anything, can he make a rock so heavy that he himself cannot lift it?". Something to debate for the ages :)

     

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    abc gum, Dec 28th, 2010 @ 12:44pm

    Re: Re: Logically speaking.

    No - the moon is cheese, as proved by google moon

     

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    Hulser (profile), Dec 28th, 2010 @ 12:47pm

    Re: Re: Sadly Enough

    If I sell road maps and you buy one and use it to find a bank to rob, am I complicit?

    No, but that's because the location of a bank is a fact which can't be copyrighted. I see your point, but if the lawyers for the big media companies are looking for one of the exclusive rights to use, I agree with Gabriel that it's going to be distribution. Not to give them any ideas, but I think the logic would go something like this...

    "The framers of the constitution explicitly spelled out the right distribution as one of the key principle of copyright. At the time, this meant the right to control where and how physical objects, such as books and pamphlets, made it into the hands of consumers. In today's world, books and other media are distributed using the Internet. But just because this distribution is faster and easier, doesn't mean that it is no longer covered by the distribution clause of the copyright law. If linking isn't distributing, what is it?"

     

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  13.  
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    Derek Bredensteiner (profile), Dec 28th, 2010 @ 12:47pm

    Re: Re: Logically speaking.

    1. Women = Time x Money [Women require multiples of time and money]
    2. Time = Money [time is money my dear friend]
    3. Women = Money x Money [from 1 and 2]
    4. Money = sqrt(Evil) [Money is the root of all evil]
    5. Money x Money = Evil [from 4]
    6. Women = Evil [from 3 and 4]

    Am I not logical??

     

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  14.  
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    Mike Masnick (profile), Dec 28th, 2010 @ 12:48pm

    Re: Recipient, not source

    Just to clarify, the linked article is actually saying the opposite, that these parties are the largest recipients of DMCA takedowns. Twitter isn't issuing any takedown requests; they're merely passing on information about the takedowns they receive to ChillingEffects.org.

    No, I'm saying those are the largest *sources* of DMCA takedowns TO chillingeffects. Yes, they're the largest recipients of the takedowns, and thus they become the largest sources for chillingeffects.

     

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    abc gum, Dec 28th, 2010 @ 12:49pm

    Re: Links more generally

    "far does the link chain have to be before it's considered not infringing?"

    Six Degrees of Kevin Bacon, except there’s just one degree, and Kevin Bacon is infringing material.

     

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  16.  
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    Steve R. (profile), Dec 28th, 2010 @ 12:52pm

    Re: Re: Logically speaking.

    Quite right: "to be useful logic must be rooted in reality" We seem, as a nation, to have lost our contact with reality and our entitlement mentality means that there has to be a deep-pocket that must be sued for damages since any problem that I am experiencing is obviously their fault.

    Since we seem to be on an out of control convoluted logical feedback loop, I wonder when our whole society will eventually become paralyzed into inaction because of a penultimate logical conundrum.

    Will copyright holders, based on their lawyers advice, begin sending DCMA take-down notices to themselves and also suing themselves for damages? Seems only logical.

     

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  17.  
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    Mike Masnick (profile), Dec 28th, 2010 @ 12:53pm

    Re: Links more generally

    It would seem to me that this is actually a broader question immaterial to Twitter specifically. Are links on any Web page to infringing material, themselves infringing on copyright? I don't know the answer, but it would seem absurd if the answer was yes. Further, I would ask how far does the link chain have to be before it's considered not infringing? In other words, if I link to a page that links to a page that links to a page that has infringing material, is my link considered infringing?

    Well, it's worth pointing out that the main argument for the seizure of those five domain names by ICE was that they were LINKING sites. None of them hosted material at all. So, apparently Homeland Security has decided not only is linking infringement, but that it can be *criminal* infringement worthy of seizure without any adversarial hearing.

     

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  18.  
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    Anonymous Coward, Dec 28th, 2010 @ 12:53pm

    Re: Links more generally

    Are links on any Web page to infringing material, themselves infringing on copyright?

    The links themselves are not eligible for copyright protection. This is the “words and short phrases” doctrine.

    Copyright Office: Circular 34

    Copyright Protection Not Available for Names, Titles, or Short Phrases

    Copyright law does not protect names, titles, or short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive or lends itself to a play on words, it cannot be protected by copyright.

    Further, even if the links were copyright-eligible material, there's also the “originality” requirement. The copyright claimant for the allegedly-infringing material is usually not the author of the link. Nor did he hire the link-writer.

     

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  19.  
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    Justin Olbrantz (Quantam) (profile), Dec 28th, 2010 @ 1:02pm

    Re: Re: Re: Logically speaking.

    To an extent this has already been done. Materials unearthed in discovery in the Viacom vs. YouTube case showed that the promotion arm of Viacom was sending promotional materials to YouTube, which then got DMCAed by the legal arm of Viacom. Internal e-mails revealed people on the promotion side referring to YouTube as "assholes" etc. for taking down and ultimately banning Viacom's YouTube account due to repeated copyright violations reported by Viacom's legal arm.

     

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  20.  
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    MrWilson, Dec 28th, 2010 @ 1:05pm

    Re: Re: Re: Sadly Enough

    "No, but that's because the location of a bank is a fact which can't be copyrighted."

    Is the virtual location of infringing content not also a fact which can't be copyrighted?

    "'If linking isn't distributing, what is it?'"

    Freedom of speech. Possibly freedom of the press in particular circumstances.

     

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  21.  
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    Chronno S. Trigger (profile), Dec 28th, 2010 @ 1:05pm

    Re: Re: Re: Sadly Enough

    "If linking isn't distributing, what is it?"

    A map to the bank.

     

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    Mike Masnick (profile), Dec 28th, 2010 @ 1:05pm

    Re: Re: Links more generally

    The links themselves are not eligible for copyright protection. This is the “words and short phrases” doctrine.


    Well, the argument is not that the text of the links themselves are infringing, but the nature of what they link to makes the link itself infringing.

    I find this to be a stretch, but it seems that many are making this argument.

     

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  23.  
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    Anonymous Coward, Dec 28th, 2010 @ 1:07pm

    Re: Re: Links more generally

    The act of putting the illegal material *here* and pointing to it from *there* doesn't suddenly put the linking site in the clear.

    Part of criminal infringement is intent. The intent to distribute, the intent to profit from, etc. Not to forget of course that you can also have a conspiracy to commit a crimal act, where more than one player works in concert (no pun intended) to commit illegal acts.

    Twitter and sites like those are less likely to find themselves specifically in trouble, but if they continue to allow an account to operate that is being used to help spread copyright material illegally, they might end up taking some risk themselves. Once informed, they are at least somewhat at risk.

    A tweet account that is pushing camcorder version of the latest movies, example, or links to downloads of movies that are not yet released would be fairly obvious. After that, it becomes more grey, as their legal people decide how much risk they are willing to tolerate.

    The answers to this are not simple, because there is no enough case law to be certain.

     

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  24.  
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    Anonymous Coward, Dec 28th, 2010 @ 1:11pm

    Re: Re: Re: Logically speaking.

    Failure. It's "...the love of money is the root of all evil..."

    Switch out 'women' for 'people' and us chicks won't beat you up in the parking lot after work. ;)

     

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  25.  
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    :Lobo Santo (profile), Dec 28th, 2010 @ 1:17pm

    Re: Re: Re: Links more generally

    Intent?

    So, let's say you're arrested for "intent to rob a bank" because you happen to own an old shotgun and a ski-mask.

    Isn't that pre-crime? Or "thought-crime"?

    I think that's double-plus bullshit. Contrary to today's legal system, I still believe in "innocent until proven guilty."

     

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  26.  
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    Anonymous Coward, Dec 28th, 2010 @ 1:17pm

    Re: Re: Re: Links more generally

    So basically looking at something is infringing?

    First there was domain seizure, then came the eye plucking!

    (although I supposed finger removal would come before eye plucking, so clicking a link is no longer possible...better get rid of arms, noses and feet too...take out voice boxes as well in case there's voice operated software...sigh, what a world, we're all born wrong...)

     

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  27.  
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    C.T., Dec 28th, 2010 @ 1:19pm

    Contributory Infringement

    Twitter likely complies with takedown requests in order to limit its potential exposure to liability based on contributory infringement.

     

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  28.  
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    Anonymous Coward, Dec 28th, 2010 @ 1:20pm

    Re: Re: Re: Links more generally

    Well, the argument is not that the text of the links themselves are infringing, but the nature of what they link to makes the link itself infringing.

    That argument goes well beyond the Copyright Act.

    It's an argument that knows no restraint and no principle: Formerly, it was thought that “copyright protects expression, not ideas”. But this is an argument that some non-original, non-copyright-eligible text infringes becauses of —what?—association of ideas?

    Show me where in the Copyright Act it says you can go and claim ownership of any random piece of text anywhere and call it an infringement.

     

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  29.  
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    Gabriel Tane (profile), Dec 28th, 2010 @ 1:24pm

    Re: Re: Re: Sadly Enough

    Whoa whoa whoa... I did not say it was distribution... I merely said I could see the logic they'd use. I agree with V (below), Revi, Chrono, that it's NOT distribution. Sorry if I wasn't clear.

     

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  30.  
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    Anonymous Coward, Dec 28th, 2010 @ 1:39pm

    Re: Re: Re: Re: Sadly Enough

    Newspaper/magazine stands legally distribute protected material correct? Phone book lists where that stand is right? Someone infringes on something purchased at that stand is the phone book publisher to blame?

     

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    duffmeister (profile), Dec 28th, 2010 @ 1:45pm

    Re: Contributory Infringement

    I thought contributory infringement wasn't in case law and tested by the courts yet.

     

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  32.  
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    Hulser (profile), Dec 28th, 2010 @ 1:49pm

    Re: Re: Re: Re: Sadly Enough

    Freedom of speech. Possibly freedom of the press in particular circumstances.

    You do realize that I was playing devil's advocate, right?

     

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  33.  
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    C.T., Dec 28th, 2010 @ 1:53pm

    Re: Re: Contributory Infringement

    Contributory infringement has been well established for going on 80 years now.

     

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  34.  
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    Hulser (profile), Dec 28th, 2010 @ 1:53pm

    Re: Re: Re: Re: Sadly Enough

    Here's what I said...

    I agree with Gabriel that it's going to be distribution

    By this I didn't mean that you thought linking was distribution, just that distribution would be the crux of the argument by some in big media as to why linking is covered by copyright as in "I already guess that some will argue the links themselves are distribution."

     

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  35.  
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    Tones, Dec 28th, 2010 @ 1:57pm

    IANAL, but my understanding is that in the US the "you must remove links to infringing material assumption" comes from sec 512(d) of the DMCA:


    A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider—
    (1)
    (A) does not have actual knowledge that the material or activity is infringing;
    (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
    (C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
    (2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
    (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.

    (emphasis mine)

    To translate a bit: A provider (like Twitter) is only allowed to link users to infringing material if they take it down as soon as they get a takedown notice.

    This is the same bit that was used, for instance, to require Blogger to takedown music blogs last February. Even though Blogger itself, of course, wasn't hosting any actual MP3s.

     

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  36.  
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    Anonymous Coward, Dec 28th, 2010 @ 1:58pm

    Re: Re: Re: Contributory Infringement

    Contributory infringement is NOT direct infringement.

    Links do not directly infringe.

    An argument that a link directly infringes seems to border on frivolous. I would say it was entirely frivolous argument—if it weren't that so many people seem to argue that posting a link is direct infringement.

     

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    Gabriel Tane (profile), Dec 28th, 2010 @ 1:59pm

    Re: Re: Re: Re: Re: Sadly Enough

    Gotcha. Looks like we both could use some coffee/beer/both.

    Cheers!

     

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  38.  
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    Anonymous Coward, Dec 28th, 2010 @ 2:02pm

    Re:

    To translate a bit

    You're translating from “shall not be liable“ into “only allowed”. Isn't that a basic logic error?

     

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  39.  
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    Alex Bowles, Dec 28th, 2010 @ 2:02pm

    Re: Sadly Enough

    I think that's the line of reasoning exactly. The idea is that collectively, the folks linking to something are creating an ad hoc distribution network around a very specific piece of media.

    Of course, the content creators have done nothing to define or propagate this network. Nor have they invested one dime in the time or resources (bandwidth, processors, displays, etc.) that did produce it. However, due to the (a) the very specific nature of this network and (b) the competition it provides to distribution via channels they do approve of, I can see how they see this as a violation of their monopoly on distribution.

    In theory, this is actually a pretty solid argument. In practice, extending distribution control in this fashion would be hugely damaging. That's why it seem unwise to dismiss this as a perverse and abusive reading of the law. If anything, the idea that links don't constitute a material distribution network seems like the real stretch.

    That said, the analog world recognized that giving publishers absolute control over distribution was a terrible idea. This insight produced the Doctrine of First Sale. The issue of ad hoc link networks seems very similar. They should be given the same kind of limited protection offered to public libraries and second-hand bookstores. It's not an exact analogy, of course, but it is based in the same idea that the public has certain basic freedoms that are exempted from a monopoly over distribution.

    Under this arrangement, a publisher still determines the time and place of a work's introduction. But after that, it loses its absolute control over the work. If a publisher wants to move the target, that's their call. It can disable ad hoc networks by reposting its material to new locations. But in doing so, it'll be forced to kill links it may want to preserve.

    This is similar to Google's position on news. If publishers don't want the traffic provided by Google, they can easily block it. But it's a a take it all or leave it entirely deal. Having it both ways isn't an option.

     

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  40.  
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    Hulser (profile), Dec 28th, 2010 @ 2:05pm

    Re: Re: Re: Re: Sadly Enough

    "If linking isn't distributing, what is it?"

    A map to the bank.


    OK, continuing on with my play at devil's advocate, if I were the hypothetical lawyer who thought linking was the same as distribution, I'd reply this way...

    "The flaw in your logic is that no where in the constitution is there an explicit right spelled out to protect the location of banks. So, selling a map or even directions to a bank is perfectly legal. On the other hand, the right to control distribution of copyrighted materials is explicitly spelled out in the constitution. In the physical world, you control distrution by controlling a physical good. In the virtual world of the Internet, you control distribution by controlling access to information. And that's all a link is, a means to access information."

    Once again, I don't think that linking is the same thing as distribution. However, I can see where a savvy attorney could use the distribution clause in copyright to make a well-reasoned (though ultimatelly invalid) argument that the two concepts were the same. I'm thinking of the "average joe" as the target of this argument, not the (mostly) IP-savy readers of TechDirt. To Average Joe, I think the "If linking isn't distributing, what is it?" argument would work in many cases.

     

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  41.  
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    Anonymous Coward, Dec 28th, 2010 @ 2:19pm

    Re: Re: Re: Re: Re: Sadly Enough

    "If linking isn't distributing, what is it?"

    Linking is a “writing”.

    It is a “writing”, but it is —most emphatically— not “their writing”.

     

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  42.  
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    Justin Olbrantz (Quantam) (profile), Dec 28th, 2010 @ 2:25pm

    Re: Re: Re: Re: Sadly Enough

    I suspect it'll be argued as a matter of intent. Almost everyone uses banks for lawful purposes, and as such giving out a map to a bank is no indication of ill intent. On the other hand, an unauthorized copy of a file posted in a public, easily-discoverable area (e.g. a public forum) is highly likely to be used for copyright infringement, therefore linking could be construed as intent to encourage infringement.

    Of course the edge case would be giving out a map to somebody you know is planning to rob the bank, but the frequency of that is negligibly small.

     

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    freak (profile), Dec 28th, 2010 @ 2:40pm

    Re: Re: Re: Re: Links more generally

    I'mma guess that this is the same AC from the other day who I kept hinting at to look up 'mens reas'.

    In that case, he's linking the mens reas to the actus reas of posting the link.

     

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    MD2000, Dec 28th, 2010 @ 2:47pm

    DMCA Rule:

    [I]...referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a ... hypertext link...[/I] IANAL - Careful parsing suggests that any links directly to a site that CONTAINS infringing material are subject to DMCA takedown notices; however it seems to say links to places that simply linkforward - do not actually contain the infringing material themselves - such as blogs and commentaries. are not subject to a DMCA takedown. Twitter can link to the blog but not to the warez site. There's a whole fleet of yatchs to be earned by the lawyers arguing where tinyurl.com falls in all this, I'm sure... "Reference" in the act is a pretty ambiguous term. This suggests you can't even say "it's at piratewarez.com", even without the hyperlink or explicit address. At a certain point disallowing this level of discussion must be an as yet unchalleneged violation of the first amendment?

     

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  45.  
    identicon
    Law Breaker, Dec 28th, 2010 @ 2:51pm

    Breaking laws

    What if I post a link such as the one below and do not tell you what it is :)


    Know why, cuz it's all 1s and 0s and it's OK


    http://www.torrentday.com:60000/6a40fa3c2c4b39b23fa0128e46795413/announce

     

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  46.  
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    robin, Dec 28th, 2010 @ 3:33pm

    Re: Re: Links more generally

    Well, it's worth pointing out that the main argument for the seizure of those five domain names by ICE was that they were LINKING sites. None of them hosted material at all. So, apparently Homeland Security has decided not only is linking infringement, but that it can be *criminal* infringement worthy of seizure without any adversarial hearing.


    look to this coming year, wherein we'll be spelling links "coica".

    the i.c.e. efforts are all a dry run for language that is in this legislation:

    2.a.1.B "...provision of a link or aggregated links to other sites or Internet resources..."


    and, some of the language strikes me as simply unconstitutional:

    2.a.1.B "...offering or providing access in a manner not authorized by the copyright owner..."


    seriously, what does access have to do with reproducing, preparing, distributing, displaying or performing??

     

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  47.  
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    Chris in Utah (profile), Dec 28th, 2010 @ 3:55pm

    Re: Re: Re: Re: Links more generally

    Just a thought Lobo. I'm with you I still believe in innocent until proven guilty.

    And yet the better half of prison system is full of non-violent drug offenders. And most of them are arrested on the "intent to distribute". The legal justification for the police is weight.

    Given that logic is it the amount of infringing links that's going to get them in trouble???

    It is a bit scary to think that the war on drugs is going to turn into the war on infringing.

     

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  48.  
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    Mark, Dec 28th, 2010 @ 3:56pm

    DMCA's are garbage

    I had my whole website of 2 1/2 years taken down and removed and I can't get it back because I had 1 link on there to a video that was hosted in Russia. I didn't respond back to the DCMA notice in time and they took my whole site down and wont let me have it back because of 1 video that was linked.. Lame.

     

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  49.  
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    Ben, Dec 28th, 2010 @ 6:08pm

    Linking to Copyrighted Material

    In the first instance, when dealing with the World Wide Web, what is the jurisdiction? When complaints are made between one American and another, the law is clear, but what if I complain from Hong Kong? Does it matter where the copyright holder lives, where Twitter is incorporated, or where the alleged infringing person lives?

    A second problem is whether a link to any copyrighted material, whether infringing or not can violate a copyright holder's rights. Take the policy from this website under the heading "Links to this Web Site from other web sites":

    http://www.mas.gov.sg/general/terms.html

    Apparently, the organization does not wish for anyone to link to this page without authorization.

    But pick a sentence from that section and type it into Google with quotation marks. You will find many links to sites with the exact same wording in the exact same policy. Apparently, these websites do not see Google as a third party.

    There is a lot of ambiguity between one jurisdiction and the next, and a lot of these laws and policies leave one uncertain as to whether the organization will take legal action. However, if the policy is copied from another organization, then what how much thought is really put into these matters?

     

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  50.  
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    Jason, Dec 28th, 2010 @ 7:42pm

    Re: Re: Sadly Enough

    "the idea that links don't constitute a material distribution network seems like the real stretch."

    Not really. Just because you call a group of links a distribution network and start to think of them that way doesn't change what things aare.

    The links don't create new channels for distribution. The capacity for distribution is not increased. Essentially the links are nothing more than promotion of the distribution network.

    It's interesting to consider the legality of promoting the distribution of copyrighted materials, but it's damn near impossible to separate it conceptually from grassroots promotion of the actual work itself.

     

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  51.  
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    ChrisB (profile), Dec 28th, 2010 @ 8:07pm

    IRL analogy

    If I tell you where a band is playing, and the band plays cover songs and doesn't pay the licensing fee, am I guilty of copyright infringement?

     

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  52.  
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    Jimmy the Geek (profile), Dec 28th, 2010 @ 8:21pm

    A link

    is exactly like your finger when it points at the moon.

    Your finger remains your finger, it does not become the moon.

    A link is just a pointer. It doesn't become infringing just because it is pointing at infringing material.

     

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  53.  
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    Anonymous Coward, Dec 28th, 2010 @ 9:24pm

    Justice is blind, politicians are dumb.

    Now I want to see they try to stop this.

    http://isis.kodeware.net/home.php

    That is the ISIS public interface for OSIRIS much like webTOR is for hidden services.

    Even Operation Payback apparently have a downed website on the OSIRIS Serverless Portal System :)

     

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  54.  
    identicon
    Anonymous Coward, Dec 28th, 2010 @ 10:46pm

    Re: Re: Re: Re: Links more generally

    Intent not in the "you intend to do in the future", but rather what were your intentions in posting the links.

    In your bank example, being in the bank wearing a ski mask with a gun in your pocket and a pre-written holdup note shows intent. You don't have to hold up the bank for a crime to be committed. You were in the bank with the intention of robbing it.

    With links, it is a little more straight forward. If you link to something and say "Here is a great video cam recording on the new movie just in theaters today", it is clear your intent is distribute copyright material. If you do this repeatedly, there is more and more obvious intent.

    It is why all the twisting and turning that gets posted on TD about this torrent site not being illegal or that torrent site not being illegal is just that: twisting. The intent of the sites is clear, certainly no clearer when you look at a site like TPB, which has made it clear that they encourage widespread copyright violation.

    Intent isn't "intend", it is what you were in process of doing.

    And for the other post, no, I wasn't the one posting about mens rea, but that is I guess the right term.

     

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  55.  
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    Anonymous Coward, Dec 28th, 2010 @ 10:50pm

    Re: A link

    Yes, buy drugs over there (pointing with his finger). Welcome to "part of the conspiracy to sell drugs".

    Your finger is still your finger, but it got you in trouble.

     

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  56.  
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    Anonymous, Dec 29th, 2010 @ 12:38am

    Re: DMCA's are garbage

    oh yes, it's so tragic.

    Are you 14 years old?

    Someone that breaks the law, gets caught, and whines about it is a f*cking douchenozzle.

     

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  57.  
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    vivaelamor (profile), Dec 29th, 2010 @ 1:51am

    Re: Re: Re: Re: Re: Sadly Enough

    "the right to control distribution of copyrighted materials is explicitly spelled out in the constitution"

    From the constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

    Is there another section that explicitly covers distribution of copyrighted materials?

     

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  58.  
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    vivaelamor (profile), Dec 29th, 2010 @ 1:55am

    Re: Re: Re: Logically speaking.

    "Am I not logical??"

    Overtly sexist or poorly comical maybe..

     

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  59.  
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    The eejit (profile), Dec 29th, 2010 @ 1:56am

    Re: Re: A link

    No. Your finger can only get you in trouble if it penetrates the veil without The Shadowy Conspiracy's permission.

     

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  60.  
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    vivaelamor (profile), Dec 29th, 2010 @ 1:57am

    Re: Re: Re: Re: Logically speaking.

    "Switch out 'women' for 'people' and us chicks won't beat you up in the parking lot after work. ;)"

    That's a problem with sexist 'humour'. The point of it tends to be 'har har, I'm sexist' and if you remove that aspect then even they fail to find it funny.

     

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  61.  
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    vivaelamor (profile), Dec 29th, 2010 @ 2:17am

    Re: Re: Re: Re: Re: Links more generally

    "it is clear your intent is distribute copyright material."

    You seem to be claiming that linking is both distribution and intention to distribute. Either it is distribution and thus intention is redundant or there is a further action implied on the part of the linker, which isn't the case.

    Talk about having your cake and eating it.

     

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  62.  
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    vivaelamor (profile), Dec 29th, 2010 @ 2:27am

    Re: Re: DMCA's are garbage

    "Someone that breaks the law, gets caught, and whines about it is a f*cking douchenozzle."

    Failure to respond to a DMCA notice does not mean that you've broken the law. The DMCA is there to protect service providers from liability in case you've broken the law. Troll better please.

     

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  63.  
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    vivaelamor (profile), Dec 29th, 2010 @ 2:29am

    Re: Re: A link

    "Your finger is still your finger, but it got you in trouble."

    Except in that case it would appear to be their mouth that got them into trouble.

     

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  64.  
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    PaulT (profile), Dec 29th, 2010 @ 2:31am

    Re: Re: DMCA's are garbage

    "Someone that breaks the law, gets caught, and whines about it is a f*cking douchenozzle."

    Only so much as those who think that "1 link... to a video that was hosted in Russia." is a criminal offence.

    I doubt we're seeing the whole story in Mark's post, but you're an idiot if you think a DMCA takedown of an entire site due to a single linked video is justice.

     

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  65.  
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    Anonymous Coward, Dec 29th, 2010 @ 8:03am

    Re: Re: Re: Re: Re: Re: Links more generally

    Both are possible and both are true. Either there is intent to distrubute (helping people obtain the copyright material by linking them to it) or in fact distribution (if you are the one that set up the copyrighted material as well).

    It's just like drugs. If you have a certain weight of drugs, or you are holding a number of "retail sale size" packets of drugs, you can be charged with intent to distribute. If you actually sell the drugs (say to undercover agents) you can be arrested for actual distribution / sale of drugs. Intent requires no real overt act, where actual distribution does. So you have possession, possession with intent to distribute, and distribution. It all depends where you are and what you are doing at the time.

     

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  66.  
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    Anonymous Coward, Dec 29th, 2010 @ 8:04am

    Re: Re: Re: Re: Re: Re: Links more generally

    Both are possible and both are true. Either there is intent to distrubute (helping people obtain the copyright material by linking them to it) or in fact distribution (if you are the one that set up the copyrighted material as well).

    It's just like drugs. If you have a certain weight of drugs, or you are holding a number of "retail sale size" packets of drugs, you can be charged with intent to distribute. If you actually sell the drugs (say to undercover agents) you can be arrested for actual distribution / sale of drugs. Intent requires no real overt act, where actual distribution does. So you have possession, possession with intent to distribute, and distribution. It all depends where you are and what you are doing at the time.

     

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  67.  
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    abc gum, Dec 29th, 2010 @ 8:33am

    Re: Re: A link

    fyi, felony != civil law

     

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  68.  
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    Anonymous Coward, Dec 29th, 2010 @ 9:14am

    Re: Re: Re: Re: Links more generally

    You miss the point entirely. Nobody is saying that the text of the links violates copyright. It is where they link, and what the intention is of that link.

    Now, to be fair, the actual text use could come to haunt the person when it comes to finding intent. "Click here and download the rip I just made of this copyright movie" pretty much would make intent clear. But it doesn't make the text itself legal or illegal, nor is anyone (except perhaps you) arguing that point of view.

     

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  69.  
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    MD2000, Dec 29th, 2010 @ 9:15am

    Crimes

    Telling someone where they can buy drugs (directing them to the dealer) is a separate and specific crime in Canada. Recall the case in the news a while ago of some stupid schmuck who directed the undercover police to his friend for a finder fee of $25. The other guy made the sale, both were arrested and charged. I would presume for conspiracy, they police would have to show the two (pointer and dealer) were acting together. For the Canadian charge, no need.

    The point is simple. Like it or not, the DMCA takedown notice provision says that a pointer to a site with content is subject to takedown. The ISP can choose to find and edit out any occurence of the offending link(s) or simply take down your entire blog. Decisions, decisions... what's easiest and least liability for them?

    What bothers me is the DMCA takedown provision for "references". That's sufficiently vague that legitimate journalistic discussion is also subject to takedown. "illegal material was found at illegalwarez.com" in a news story could be subject to a takedown notice. (how about "the illegalwarez company web site"? Is that a "reference"?) This verges on free speech/free press violation. In this case, intent is still irrelevant; you could be telling people how to get the stuff, or news-reporting on a takedown notice - still subject to DMCA takedown (IMHO - IANAL).

    As for the distribution issue and criminal charges, separate from DMCA takedown notice issues; the issue is still up in the air. IIRC it was Limewire or somebody who was nailed because there was no doubt they were encouraging infringement, hence the "contributory" judgement - but again, that was civil liability, not criminal charges which require a higher burden of proof and are different laws.

    Meanwhile legit file backup/storage sites fight the complaints with (legitimate) arguments that like Google, they serve a significant legitimate purpose even if some violation of copyright can be found. Overall intent, how the site is marketed, what the internal emails say about their business model and customers - all these are useful sources of determining intent. When the issue is debatable, all this is evidence for determining the truth.

     

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  70.  
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    Anonymous Coward, Dec 29th, 2010 @ 9:17am

    Re: Re: Re: A link

    fyi, BurdenofProof(Civil)

     

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  71.  
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    PaulT (profile), Dec 29th, 2010 @ 9:42am

    Re: Re: Re: Re: Re: Re: Re: Links more generally

    Yet another sterling example of why these terrible analogies to physical crimes fall apart instantly. Comparing a Twitter link to possession of a controlled substance is a pretty wide-reaching and dangerous tactic, even if there are some very superficial similarities.

     

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  72.  
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    The Infamous Joe (profile), Dec 29th, 2010 @ 9:51am

    Re: Re: Re: Re: Re: Links more generally

    So, a page full of links with a disclaimer at the top of the page saying not to download anything linked there would be fine with you?

     

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  73.  
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    Anonymous Coward, Dec 29th, 2010 @ 9:59am

    Re: Re: Re: Re: Re: Links more generally

    Nobody is saying that the text of the links violates copyright.

    According to you, “no one” says the text of the link is an infringement. However, you are saying that the link is an infringement. It must be the non-text part of the link that infringes.

    Dude, copyright regulates expression. Not ideas. That's a bedrock principle. It's one of copyright's inherent accommodations for free speech. It's a free-speech accomodation that Justice Ginsburg recognized recently.

    But, you apparently don't like that inherent accommodation anymore. So you want to grant someone some ownership of link text—because of the idea that link conveys.

     

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  74.  
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    average_joe (profile), Dec 29th, 2010 @ 10:05am

    Good topic!

    So what part of copyright law does linking violate?

    You're right that providing a link is not direct infringement, but there's more to it than that.

    Services like Twitter fall under 17 U.S.C. 512(c), Information Residing on Systems or Networks at Direction of Users.

    According to the statute, the service provider can be liable "for infringement of copyright by reason of the storage at the direction of the user" if they have either actual knowledge or apparent knowledge that the "material" or "an activity using the material" is infringing.

    While the link itself is not infringing material, activity using that material, i.e., clicking on the link, can be infringing. If the activity using that material is infringing, then the service provider could potentially lose their safe harbor if they don't comply with the notice.

    Not all links are the same though. Some links automatically start the download of the infringing material. Other links take you to a page where the infringing material is available. And other links take you to a page that has a link to another page where the infringing material is available. You get the idea.

    I'll look up some caselaw on hyperlinks being the target of DMCA takedown notices and post what I find. Good topic.

     

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  75.  
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    rabbit wise (profile), Dec 29th, 2010 @ 10:41am

    Re: Re: Re: Re: Re: Sadly Enough

    Question: Who has determined that "almost everyone" who uses files posted in a "public, easily-discoverable area (e.g. a public forum)" are unauthorized? (citation please)

    Considering that even the copyright holders can't determine in most reported cases whether or not the file is itself authorized or not, I think the generalization regarding users of public files needs to be nipped in the bud.

    Now that we've got people actually looking at the RIAA and MPAA's numbers, maybe the next thing to combat is the idea that every single person out there is using publically available files for nefarious reasons.

     

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  76.  
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    Mark, Dec 29th, 2010 @ 11:25am

    Re: Re: Re: DMCA's are garbage

    "Someone that breaks the law, gets caught, and whines about it is a f*cking douchenozzle."

    -- First off go troll else where


    Failure to respond to a DMCA notice does not mean that you've broken the law. The DMCA is there to protect service providers from liability in case you've broken the law. Troll better please.

    --I failed to reply to the DMCA notice in time because I was in the hospital with my mom who has Stage 4 brain cancer. After replying to the DMCA notice they wouldn't even reply back to me and the web host will also do nothing.

    It's kind of lame that for 1 link that is pointing to something infringing that I was not aware was infringing would take a valid site down and not give me a chance to remove it because I didnt respond within the 48hour time period during Thanksgiving. To me that is pretty lame to do to people.

     

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  77.  
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    Anonymous Coward, Dec 29th, 2010 @ 11:27am

    Re: DMCA's are garbage

    ... 1 link on there to a video that was hosted in Russia.

    Contacts Leading to Suspicion of Espionage

    [P]eople were sentenced not only for actual espionage but also for:

    PSh—Suspicion of Espionage—or NSh—Unproven Espionage—for which they gave the whole works.

    And even SVPSh—Contacts Leading to (!) Suspicion of Espionage.

    In other words, let us say that an acquaintance of an acquaintance of your wife had a dress made by the same seamstress (who was, of course, an NKVD agent) used by the wife of a foreign diplomat.

    ... In general, all the lettered articles—which were, in fact not articles of the Code at all but frightening combinations of capital letters (and we shall encounter more of them in this chapter)—always contained a touch of the enigmatic, always remained incomprehensible, and it wasn't at all clear whether they were offshoots of of Article 58 or independent and extremely dangerous....

     

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  78.  
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    vivaelamor (profile), Dec 29th, 2010 @ 1:00pm

    Re: Good topic!

    "While the link itself is not infringing material, activity using that material, i.e., clicking on the link, can be infringing. If the activity using that material is infringing, then the service provider could potentially lose their safe harbor if they don't comply with the notice."

    The article is specifically referring to cases where the material does not directly link to infringing material, in which case I find it hard to believe that clicking on the link could be an infringing activity. How can twitter know whether someone who clicks on a blog link is going to then click on a link on that blog which may be infringing?

     

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  79.  
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    vivaelamor (profile), Dec 29th, 2010 @ 1:20pm

    Re: Re: Re: Re: Re: Re: Re: Links more generally

    "Either there is intent to distrubute (helping people obtain the copyright material by linking them to it) or in fact distribution (if you are the one that set up the copyrighted material as well)."

    If you are intending to distribute something by linking it then you are in fact distributing it unless you have not yet posted the link. You are implying that someone can be guilty of intention to distribute, having posted a link, without actually being guilty of distribution.

    Yes, distribution implies intention to distribute, but as I pointed out, distribution makes the intention redundant. If you are not arguing that there can be intention to distribute without actual distribution then I am merely confused by you mentioning intention when it is redundant.

    "It's just like drugs. If you have a certain weight of drugs, or you are holding a number of "retail sale size" packets of drugs, you can be charged with intent to distribute. If you actually sell the drugs (say to undercover agents) you can be arrested for actual distribution / sale of drugs. Intent requires no real overt act, where actual distribution does. So you have possession, possession with intent to distribute, and distribution. It all depends where you are and what you are doing at the time."

    In your example there are two activities, holding the drugs and selling the drugs. With regards to linking there is only one activity. You can either argue that it is equivalent to holding the drugs (intention) or selling the drugs (distribution). Arguing that it is equivalent to holding the drugs is flawed because the intention is tied to the second activity. Arguing that it is equivalent to selling the drugs is a better argument, but not the one you appear to be making.

     

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  80.  
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    Anonymous Coward, Dec 29th, 2010 @ 1:58pm

    Re: Re: Good topic!

    If Twitter loses their safe harbor under 512(c) then they can be liable for secondary or indirect liability for the link. For example, if Twitter knows the link is being used for infringement and then does not remove the link, they could be liable for contributory infringement.

    Of course, services like Twitter remove tweets with links when they receive a takedown notice because by doing so they guarantee that they won't be held liable no matter what. That's the safe play every time.

     

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  81.  
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    average_joe (profile), Dec 29th, 2010 @ 1:58pm

    Re: Re: Re: Good topic!

    That was me, by the way. Wasn't signed in...

     

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  82.  
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    PaulT (profile), Dec 29th, 2010 @ 2:03pm

    Re: Good topic!

    "the service provider can be liable "for infringement of copyright by reason of the storage at the direction of the user""

    I'm curious: at what part of the linking process (which may be obscured from Twitter via a 3rd party link shortener) are they responsible for the storage of the infringing material?

     

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  83.  
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    average_joe (profile), Dec 29th, 2010 @ 2:04pm

    Re: Re: Re: Re: Re: Re: Re: Re: Links more generally

    You are implying that someone can be guilty of intention to distribute, having posted a link, without actually being guilty of distribution.

    They can.

    You can post a link to infringing material--material that you did not distribute in the first place--and still be held liable for the infringement of other people who use your link to access the infringing material. It's called secondary or indirect liability.

     

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  84.  
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    average_joe (profile), Dec 29th, 2010 @ 2:19pm

    Re: Re: Good topic!

    I'm curious: at what part of the linking process (which may be obscured from Twitter via a 3rd party link shortener) are they responsible for the storage of the infringing material?

    I don't think there is a simple answer to your question, since you'd really have to analyze it on a case-by-case basis. The specifics would matter greatly.

    If it's contributory infringement, it would have to be proved that Twitter either knew or should have known that the link was being used for infringing activity and then failed remove the link.

    The reality is, Twitter is incentivized to take down any material they receive a notice for since that way they are completely immune from liability.

     

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  85.  
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    PaulT (profile), Dec 29th, 2010 @ 2:36pm

    That sounds like something that's incredibly difficult to prove, and would be best remedied by going after the hosts themselves rather than 3rd party link site. That's the tactic most of us here also recommend when discussing torrent sites, etc., yet you seem to argue that they should be held liable regardless.

    Whatever the technical legal situation, there can only be negative consequences from going after 3rd parties who have nothing to do with the direct infringement.

     

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  86.  
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    PaulT (profile), Dec 29th, 2010 @ 2:38pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Links more generally

    ...which is a potentially a horrendously chilling effect on free speech. Especially considering the appalling record that copyright holders have of correctly identifying infringing material (see: Viacom vs YouTube or people who have had home videos taken down despite clear fair use)

     

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  87.  
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    average_joe (profile), Dec 29th, 2010 @ 3:01pm

    Re:

    I agree that it would be difficult to prove--but not impossible if the facts were there.

    I'm not arguing that they should be held liable, I'm only saying that they could be held liable under the right set of facts.

     

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  88.  
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    Gregg Freishtat, Dec 29th, 2010 @ 3:49pm

    slippery slope

    Well - logic dictates that Twitter should not be liable as 1) it did not create the link to illegal material and 2) it does not host or profit from the consumption of the illegal material. However, if you look at the ruling in the Limewire and Napster cases, it is quite murky. The current law does not provide a safe harbor for Twitter and we will know more once the Supreme court addresses the Fair Use laws - likely in 2011.

     

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  89.  
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    Anonymous Coward, Dec 30th, 2010 @ 1:06pm

    Re: Re: Re: Re: DMCA's are garbage

    so...host your website somewhere else?

     

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  90.  
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    Griff (profile), Jan 1st, 2011 @ 7:13am

    Different shades

    Seems we have a spectrum of possibilities for what a link is

    At one end, a link that leads directly to a download.

    At the other end, describing an infringing website in such a way that people can find it and engage in activity with infringing content. Ie the news storty example mentioned above.


    What bothers me is that I could post a link to a blog in jan that started hosting infringing content in feb. Am I supposed to revisit any link I post periodically to see if the target is still valid ?


    There have been various legal analogies posted here, but I feel that "linking to illegal content" is like running a TV ad for an illegal casino. There is clear intent to get people to go there and do something illegal.
    But if you're producing a local free newspaper that lists the local businesses in your high street and you list a video shop that (though this is not common knowledge) sells dodgy vids, you'd hopefully get away with it.
    The difference is whether you have a reasonable chance of having not known that there was illegal stuff there.

    In the casino TV ad case, I'd expect the TV station to respond to a takedown, but not to be prosecuted if they had not actually seen the ad when it ran.

    Google can link to infringing sites with impunity because they have no way of realising till they are told. Robots don't do advanced legel processing. But a person who sets out to post a link to a torrent site has fairly clear intent.

     

    reply to this | link to this | view in thread ]

  91.  
    icon
    PaulT (profile), Jan 2nd, 2011 @ 1:41am

    Re: Different shades

    "I feel that "linking to illegal content" is like running a TV ad for an illegal casino. There is clear intent to get people to go there and do something illegal."

    I disagree. The problem is that you're making the assumption that the content linked to is obviously copyrighted, and that linking to it is thus clearly inciting somebody to break the law. It's not always so clear-cut, especially when we start looking at the traps inherent in copyright law (e.g. you link to an MP3 of a mashup that's been put there with full permission from the original creator, but contains uncleared samples that make it infringing).

    There's also the issue that you yourself raised in a previous paragraph - the content linked to could change within a few minutes of you linking to it, from a legal to illegal item, and you would have no way of removing your link.

    "In the casino TV ad case, I'd expect the TV station to respond to a takedown, but not to be prosecuted if they had not actually seen the ad when it ran."

    A very bad analogy, in that case. Do you honestly think that TV stations don't screen the ads they're going to show?

     

    reply to this | link to this | view in thread ]

  92.  
    icon
    The Infamous Joe (profile), Jan 2nd, 2011 @ 3:03am

    Re: Different shades

    There have been various legal analogies posted here, but I feel that "linking to illegal content" is like running a TV ad for an illegal casino. There is clear intent to get people to go there and do something illegal.

    To borrow (steal??) your analogy, it would be more akin to running an ad for a casino. Period. Some places casinos are illegal, but again, some places they are not. It's not your job to determine if the casino is legal.

    Stepping away from the analogy, with more and more artists using torrents as a tool, often as a viral campaign, it's becoming harder and harder to tell what is authorized and what isn't. Hell, sometimes the company that authorized it can't tell. So, do you assume they are *all* illegal, or do you assume the opposite? You said yourself that it would require an "advanced legal processing" to know. You expect that from a fan who wants to spread the word about something he enjoys? Do we all need to be experts in IP law and talk to a judge before using the internet now?

     

    reply to this | link to this | view in thread ]


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