Oh, brother. Iit looks like we’re going to have this same debate again…

there is no inducement standard in criminal infringement

This is an absolute lie, and you know it. Inducing is the same as aiding and abetting.

Civil inducement is not the same as aiding and abetting. Grokster, for example, was found liable for “inducing” infringement (called “contributory” and/or “vicarious” infringement in Napster), but would probably not be guilty of aiding and abetting.

That is what Mike was talking about, and he made it pretty clear:

I could potentially see a civil charge against him using the court-created concept of “inducing” infringement (a concept that Congress rejected…), but there is no inducement standard in criminal infringement. It’s possible that the feds could go with an aiding and abetting charge, but that requires a much higher standard[…]

His statement was accurate. Stop arguing against straw men.

Despite all of your ridiculous, brainless FUD, willfully linking and embedding to infringing content can be aiding and abetting criminal copyright infringement.

I have never heard of a single person ever being convicted solely for linking to, or embedding, infringing content.

On the other hand, Perfect 10 v. Google makes it clear that this is probably not infringement, criminal or otherwise:

The Court concludes that in determining whether Google?s lower frames are a “display” of infringing material, the most appropriate test is also the most straightforward: the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that “displays” the content.

This is called the “server test” for infringement, and it is the standard test for whether a website can be liable as a direct infringer.

This case follows the ruling in Perfect 10 v. Cybernet Ventures:

Based on the evidence before the Court it appears that Cybernet does not use its hardware to either store the infringing images or move them from one location to another for display. This technical separation between its facilities
and those of its webmasters prevents Cybernet from engaging in reproduction or distribution, and makes it doubtful that Cybernet publicly displays the works… [Emphasis in the Google ruling’s quote]

Furthermore (from Perfect 10 v. Google again):

Certain other decisions, some unpublished, do deal with traditional hyperlinking ? i.e., rather than incorporating third-party content via in-line linking or framing, websites create hyperlinks that transport the user directly to the linked-to,
infringing page. Each of these cases holds that such linking does not implicate any of the exclusive rights under copyright. [Emphasis mine]

If you’re curious, those cases are: Ticketmaster Corp. v. Tickets.com, Inc. (unpublished); Online Policy
Group v. Diebold, Inc.; Bernstein v. JC Penney, Inc. (unpublished); and Arista Records, Inc. v. MP3Board, Inc. (unreported).

Now, those websites could, possibly, still be held accountable for secondary liability – but, as Mike pointed out, there is no criminal secondary liability for copyright infringement. (Aiding and abetting is not the same as secondary liability.)

Even if you wrongly believe there is, here’s how the case ruled on “vicarious infringement:”

Google does not exercise control over the environment in which it operates – i.e., the web. Google?s ability to remove a link from its search index does not render the linked-to site inaccessible. The site remains accessible both directly and indirectly (i.e., via other search engines, as well as via the mesh of websites that link to it). If the phrase “right and ability to control” means having substantial input into or authority over the decision to serve or continue serving infringing content, Google lacks such right or ability. […] Google cannot shut down infringing websites or prevent
them from continuing to provide infringing content to the world. [Emphasis mine]

So, it looks like the only one spreading “ridiculous, brainless FUD” around here is you.

If he aided and abetted others to violate those rights, then he is guilty as if he violated them himself. Cf. the U.S. v. Dove case I cited in the other thread.

As I pointed out, the actions of the defendants in this case and the Dove case are substantially different. So much so, that Dove was also convicted of conspiracy and of direct infringement.

(By the way – I got the Dove jury instructions from the denial of a motion for new trial. I’ve also found the denial of restitution. But I have not found a link to the case itself. Do you have one?)

From the jury instructions in the Dove case:

The aiding and abetting instruction required the jury to find that willful copyright infringement as charged was to be committed or was being committed and that he did some act knowingly and willfully to aid in the crime, with the intention of causing the crime to be committed. [Emphasis mine]

Merely linking to infringing content, whether inline or not, does not do this. If it did – as Marcus pointed out – you yourself would be guilty of aiding and abetting, simply by posting a link to McCarthy’s site in these comments.

For how and why it does not, there’s a long but informative chart on Page 39 of the P10 v. Google ruling, comparing Google’s case with the Napster case. On the question of “material contribution,” the court concludes:

(Google) has not induced or encouraged such websites to serve infringing content in the first place. Moreover, it would be a “gross generalization that cannot withstand scrutiny” to argue that “supplying the ‘means’ to accomplish an infringing activity and [even] encouraging that activity through advertisement are sufficient to establish liability for copyright infringement.” […] Such websites existed long before Google Image Search was developed and would continue to exist were Google Image Search shut down. [Emphasis in original]

In every single comparison, McCarthy’s site behaves more like Google than like Napster.

There is another issue to consider. Previously, I had believed that McCarthy’s website was ineligible for 17 USC 512 protection. Mostly I was concerned with 512(c), which deals with sites that host user content (such as RapGodfathers). However, there’s also 512(d), “Information Location Tools.” I had previously believed that this applied only to search engines and the like. But I think I was wrong:

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 […] [Emphasis mine]

It seems like this could also apply to what used to be called “link farms,” and what ICE calls a “linking website.” This is what McCarthy’s website is, by ICE’s own definition. Could his site possibly fall under this category?

If so, then McCarthy should be neither liable nor guilty – assuming he followed those rules, of course.

Inducement of a crime is a crime under 18 U.S.C. 2. Mike stated that “there is no inducement standard in criminal infringement,” and that is a lie.

Mike explicitly differentiated between civil inducement and aiding and abetting. Then said that the civil inducement standard – which is a secondary liability standard – is absent in criminal infringement. As far as I know, this is an accurate statement: there is no secondary liability standard in criminal infringement.

That’s what he meant, you know it, and you keep lying. It really doesn’t help your case.

Really, you think McCarthy and his website are a “service provider” under Section 512? LOL! Try again.

I don’t know, that’s why I asked a question. You know, that thing with the squiggly mark at the end.

Here’s the definition, from 512(k)(1):

Service provider.?
(A) As used in subsection (a) [“Transitory Digital Network Communications”], the term ?service provider? means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user?s choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term ?service provider? means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

That definition includes not just ISP’s, but such diverse online entities as blogs, search engines, sites with forums, video streaming sites, and news aggregators. Pretty much anything that includes third-party content. Would McCarthy’s video links count as an “online service?” I’m not sure I believe it either, but it’s something to at least consider.

Please stop playing internet lawyer, Karl.

Well, jeez Louise, maybe I wouldn’t have to if you were better at it. I mean, Perfect 10 v. Google is more relevant to this case than U.S. v. Dove. But if I hadn’t mentioned it, would you?

it’s pretty obvious to absolutely anyone reading this that Karl knows way more about the topic than you.

I don’t believe this, actually. I think this A.C. knows perfectly well that there is plenty of case law that makes both the seizures, and the case itself, legally questionable.

Instead, I think he’s being dishonest. He knew Mike didn’t ever say “there’s no such thing as aiding and abetting infringement,” he’s just twisting Mike’s words. He knew about Perfect 10 v. Google, he just completely ignored it. He knows there are significant problems with these ex parte seizures (like the fact that 512(j)(3) expressly prohibits them, or the First Amendment limitations), he’s deliberately ignoring them.

And whenever anyone brings any of them up, he goes off on tangents, brings in hundred-year-old case law, and gets bogged down in irrelevant details. All with a healthy sprinkling of “LOL” and sarcastic, personal attacks.

It’s certainly possible to debate this. In fact, I think that were this a civil case, McCarthy would almost certainly be liable for contributory infringement; nor do I think McCarthy actually satisfied the rules required in 512. I also think this isn’t enough for a criminal conviction, and it doesn’t absolve ICE of prior restraint (which is worse for society than piracy itself).

But he’s not here for debate. He’s here on a personal, anti-Mike quest, fueled by sheer vitrol and personal hatred of anything he believes should be piracy. The spouting of case law is just a cover.

Sadly, I have a strong suspicion who it is. And it’s pretty disappointing.

Of course, I have reasons for my opinions too. (Hint: it’s not that I’m “pro-piracy.”) I prefer to take a different approach. Well, except for this post… so I should probably stop now.

However McCarthy did indeed discriminate in his search function, and that is likely to be his downfall.

Like I said, I doubt he actually followed the rules in Section 512. I think a judge will rule that he definitely was “aware of facts or circumstances from which infringing activity is apparent.”

This decision, of course, is only possible to make after all the facts are presented to the court, including the defendant’s fact. Making the seizure of his domain forbidden under 512(j)(3).

There are more issues here, of course.

Under the Perfect 10 v. Google et. al. standard, he is absolutely not the primary infringer. Which means he can only be charged with “aiding and abetting” the primary infringement. Which means that the primary infringement must be criminal for him to “aid and abett” it, and also that the primary infringement would be impossible (or highly unlikely) to occur without his aiding and abetting.

That’s going to be next to impossible to prove, because it’s ridiculous, which is why I think criminal charges are dead in the water. Civil infringement, however, allows for secondary liability, which he could (and almost certainly would) be found guilty of.

I suspect the parties on who he infringed – the plaintiffs in a civil case – know this is true. They just don’t want to spend money suing folks who don’t actually cost them anything. So they give enough money to Congress to convince the U.S. government (and us taxpayers) to foot the bill instead.

They’re looking at all those cases that wouldn’t even survive discovery in a civil case, and fobbing them off on the government. And if the whole operation fails, what do they care? They’re not liable for damages. They didn’t have to spend all that money on lawyers. Hell, merely the fact that these people were charged is enough to paint a big red A on their chest. They’ve got everything they’ve always wanted, without spending a dime, and with the full cooperation of an entity that has access to more seizure statutes than they do, and more money (ours) than they could spend in a lifetime.

This whole thing is a plain abuse of the system. If the government was actually sane and rational, they’d see right through it. But when was that ever the case?

There is an option in your account settings to set page width as variable, which greatly improves heavily nested comments for me.

Off-topic, but this advice is extremely helpful. Thank you!