Annoying. This is really simple.

Google doesn’t know the link points to infringing content until someone tells them.

But a person who on purpose posts a link that they already know points to infringing content ALREADY KNOWS that the link points to infringing content. No one has to tell them because they already know.

How can someone knowingly link to infringing material yet not know that they’re linking to infringing material until someone tells them they are? That makes zero sense.

So when you say they cannot know, that makes no sense. I’m talking about people who do know and who post the link with that knowledge.

Sheesh.

Yeah, it’s not weaselly at all for you to say ‘A is the same as B’ and then follow that up with ‘it is well-settled that B is illegal’ when you know full well that it has not be ‘well-settled’ that A is illegal or that A is the same as B.

I don’t think I misrepresented anything. What I said is true. A linker is an authorizer (true; but unsettled), and it is settled that an authorizer is a contributory infringer (also true). I’m simply making an argument–one that the Ninth Circuit had no trouble making. I even cited precedent and everything.

So I said X implies Y (which I did not say was settled), and then I said Y implies Z (which I said is settled). You mistook what I said to imply that X implies Z is settled. I didn’t say that. That you made a mistake does not mean I’m being “weaselly.”

You’re really going to great lengths with this. Silly.

You are, once again, lying. I’ve never seen Mike say that links should never give rise to any liability.

The post I’m thinking of was just last month where Mike, when talking about “websites that involve either links or embeds of videos hosted elsewhere,” pondered, “how is such a site infringing at all?”

Link: http://www.techdirt.com/articles/20120803/05165019928/judge-posner-embedding-infringing-videos-is-not-copyright-infringement-neither-is-watching-them.shtml

So right there it’s pretty clear that he doesn’t see how linking and embedding can possibly be infringing. Towards the end of the article he states that “hosting the embed code” is not infringing. And he concludes that the infringement is “completely disconnected from the . . . the site doing the embedding.” Of course, Mike was completely misreading the opinion out the Seventh Circuit. My opinion is that he did so intentionally, but that’s neither here nor there.

So clearly I’m not lying, and Mike has explicitly claimed that links aren’t infringing. Strike 1.

He has said that linking should not be an infringement in and of itself. And the courts agree – including the case you just mentioned:

The Ninth Circuit there was discussing direct liability for infringement of the display right. The clue is that it comes under the section heading “III. Direct Infringement A. Display Right.” The court said that linking is not direct infringement. I never claimed otherwise (although I do disagree with the Ninth Circuit on that point, and there is some caselaw and commentary that suggests otherwise).

You need to read the part of the opinion that comes later (under the helpful section heading “IV Secondary Liability for Copyright Infringement A. Contributory Infringement”) where the court of appeals says that linking can give rise to indirect liability for infringement.

Given that the issue is contributory infringement, there has to be primary infringement, so in that sense linking “in and of itself” is not infringement. You could say that about all contributory infringers. But I never claimed otherwise. Nor do I believe Mike has ever made that distinction (he’s too busy pretending like linking gives rise to no liability). So no, I don’t get your point. Strike 2.

This is relevant to the seizures, which are criminal cases, because there is no “secondary liability” in the criminal statutes. But that’s not saying, and Mike never said, that there should be no liability at all.

The Copyright Act doesn’t distinguish between direct and indirect infringers, and both are treated the same under Section 506. So you’re wrong. Section 506 creates criminal liability for infringers, whether direct or indirect.

And Mike did question how linking sites are “infringing at all,” so you’re wrong there too. Strike 3.

I’m really getting sick of you lying, Joe. For a while, it was interesting debating the law with you. Now I realize you’re just spouting off off-topic legal quotes to smear Techdirt. It’s really sad.

Huh? No matter, ’cause… You’re out! 😉

In that article, he is asking how those particular sites – which did not host or store any materials themselves, and whose links were put there by users, not site owners – could be held liable for any form of infringement.

That’s not true. He never says that he’s only discussing sites where the links are provided by third-parties. He says, “the videos themselves were uploaded by other people to other sites,” but he does not say that the links were also provided by others. Nor would it matter whether the links were provided by others. If the site owner encouraged others to post infringing links, or if the site owner received notification (and thus knowledge) that infringing links were there, the site owner could still be liable. The fact that others post the links doesn’t mean that the site owner can’t be liable for them. So I don’t get your point.

Given the myVidster ruling – which held that myVidster is not even liable for contributory infringement – it’s a very good question.

In that particular case on that particular record, myVidster wasn’t liable. But nowhere in the opinion does the court of appeals say that a linking site can never be liable. Quite the opposite, in fact. See, e.g., http://tmtlaw.default.wp1.lexblog.com/2012/08/15/did-the-flava-works-decision-create-a-copyright-loophole-for-online-video/ Posner said myVidster wasn’t liable for the embeds because there was no admissible evidence that anyone used them to watch infringing videos. Change the facts and the outcome could change too. Linking sites can be liable.

But it does not mean that a site that provides links can never be liable for contributory infringement. Just that it must be shown that they must do more than merely provide links to infringing material.

Again, that doesn’t contradict anything I said. Nor did Mike ever make the distinction that you’re pretending he made. Mike didn’t say, “Well, linking can lead to liability if other facts are present.” He questioned whether it could ever lead to liability: “how is such a site infringing at all?” Nice try at revising, but no dice.

I have. But “contributory infringement” is not actually infringement. It can give rise to civil liability for contributing to someone else’s infringement, but it is not in itself infringement.

Huh? That makes no sense. A contributory infringer is an infringer. Contributory infringement is actually infringement. The Supreme Court has referred to “the fact that an infringer is not merely one who uses a work without authorization by the copyright owner, but also one who authorizes the use of a copyrighted work without actual authority from the copyright owner.” Sony v. Universal, 464 U.S. 417, 435, n.17 (1984). If you read Section 106, you’ll notice that copyright owners have the right “to do and to authorize” the given acts. One who authorizes an infringement is an infringer. It’s called “contributory infringement” because it is in fact infringement.

Here’s the Ninth Circuit discussing contributory infringement:

1. Contributory Copyright Infringement

Contributory copyright infringement is a form of secondary liability with *795 roots in the tort-law concepts of enterprise liability and imputed intent. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir.1996); Perfect 10, Inc. v. Amazon.com, Inc. et al., 487 F.3d 701 (9th Cir.2007). This court and the United States Supreme Court (Supreme Court) have announced various formulations of the same basic test for such liability. We have found that a defendant is a contributory infringer if it (1) has knowledge of a third party’s infringing activity, and (2) ?induces, causes, or materially contributes to the infringing conduct.? Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004) (citing Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). In an Internet context, we have found contributory liability when the defendant ?engages in personal conduct that encourages or assists the infringement.? A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir.2001) (internal citations omitted). In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court adopted from patent law the concept of ?inducement? and found that ?[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement.? 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005).3 Most recently, in a case also brought by Perfect 10, we found that ?an actor may be contributorily liable [under Grokster ] for intentionally encouraging direct infringement if the actor knowingly takes steps that are substantially certain to result in such direct infringement.? Amazon.com, 487 F.3d at 727.

We understand these several criteria to be non-contradictory variations on the same basic test, i.e., that one contributorily infringes when he (1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement. Viewed in isolation, the language of the tests described is quite broad, but when one reviews the details of the actual ?cases and controversies? before the relevant court in each of the test-defining cases and the actual holdings in those cases, it is clear that the factual circumstances in this case are not analogous. To find that Defendants’ activities fall within the scope of such tests would require a radical and inappropriate expansion of existing principles of secondary liability and would violate the public policy of the United States.

Perfect 10 v. Visa, 494 F.3d 788, 794-95 (9th Cir. 2007).

If you look at Section 501, it states: “Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 . . . .is an infringer of the copyright.” Those rights include the right to do and to authorize an infringement. One who contributes to the infringement of another is himself an infringer. This follows from the source of contributory infringement, which is the tort doctrine of enterprise liability. Contributory infringers are jointly and severally liable with the primary infringers. They are both infringers, liable for the same infringement. The law considers them to have acted together to cause the same infringement.

A link site may be held liable for contributing to the infringement, if the site hosting the links is “intentionally inducing or encouraging direct infringement.” That is, if the site hosting the link intentionally induced or encouraged users to upload infringing material to third-party hosting sites, it can be held liable for those users’ infringements. But merely providing a link to already-existing material does not, by itself, do this.

That’s not what the Ninth Circuit said in Perfect 10 v. Amazon.com, which I quoted at length. It matters not whether the linker or site hosting the links played a part in uploading the infringing file. The court of appeals said that Google could be liable for failing to remove a link to infringing material. There was no condition that Google had to have played a part in that material being uploaded to a third-party site in the first place. Nor does that make any sense. The court makes clear that the link itself materially contributes to the underlying infringement without the need to show that the site played a role in placing the infringing material on other sites. If the site played such a role, that could lead to liability as well.

And, yes, Mike made the distinction: “After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be.”

That “neutrally” claim made me laugh. That’s like saying the bullet that came out of my gun and into your head flew there “neutrally.” It ignores the fact that I pointed the gun at your head in the first place. Moreover, that quote only shows that Mike was making a distinction about who put the files on the third-party sites to begin with. That mentions nothing about the links, nor does your new argument (one that Mike did not make) that the linker must also have played a role in the uploading of the linked-to file hold water. The Ninth Circuit found that Google could be liable for the link without reference to Google’s role in the uploading of the linked-to file.

You may disagree with him that providing links does not “intentionally induce or encourage” the users to upload videos to the third-party sites. (You would be wrong, but you could disagree.) What you cannot claim is that Mike said no liability whatsoever could ever possibly arise from any linking sites. That would be an outright lie.

I don’t disagree that subsequently linking to a file that someone else already uploaded doesn’t encourage that person to commit an act that they already have committed. That makes no sense. About a linking site, Mike questioned “how is such a site infringing at all?” It is not a lie for me to say that Mike doesn’t think that links should give rise to liability when he explicitly questioned such a thing.

This is complete and utter bullshit. If the statutes didn’t distinquish between “direct” and “indirect” infringers, then both would be “direct infringers” under the statute. Either you infringe on the rights granted in 17 USC 106, or you don’t. If you don’t, then you’re not an infringer.

Contributory infringers are jointly and severally liable with the primary infringers they aided. I’m not saying that both direct and indirect infringers are direct infringers. I’m saying that under the Act, both are infringers. A contributory infringer is an infringer, as I’ve pointed out. The Act treats both the same in that both are jointly and severally liable for a given act of infringement. Both the primary and the secondary infringers are liable together for the infringing act they both worked together to bring about.

Civil law can hold some people liable for the infringement of others, under theories of “contributory” or “vicarious” infringement. But that liability does not arise from copyright statutes, but from “rules of fault-based liability derived from the common law.” As Judge Posner observed in the myVidster ruling:

The law doesn’t recognize “secondary infringement” either. The only distinctions relevant to this case are between direct infringement (which really ought just to be called infringement) and contributory infringement, and between contributory infringement and noninfringement. The direct infringers in this case are the uploaders.

Right there Posner says that there is “contributory infringement,” which just above you said doesn’t exist. And you’re pulling that quote from the Ninth Circuit out of context. The court of appeals said:

We must next consider whether Google could be held liable under the first category of contributory liability identified by the Supreme Court, that is, the liability that may be imposed for intentionally encouraging infringement through specific acts.11 Grokster tells us that contribution to infringement must be intentional for liability to arise. Grokster, 545 U.S. at 930, 125 S.Ct. 2764. However, Grokster also directs us to analyze contributory liability in light of ?rules of fault-based liability derived from the common law,? id. at 934?35, 125 S.Ct. 2764, and *1171 common law principles establish that intent may be imputed. ?Tort law ordinarily imputes to an actor the intention to cause the natural and probable consequences of his conduct.? DeVoto v. Pac. Fid. Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir.1980); Restatement (Second) of Torts ? 8A cmt. b (1965) (?If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.?).

Perfect 10 v. Amazon.com, 508 F.3d 1146, 1170-71 (9th Cir. 2007).

So the court of appeals did not say “that liability does not arise from copyright statutes,” they said that liability is to be examined under the tort concepts from which it arose such as enterprise liability. This includes the concept that secondary tortfeasors are jointly and severally liable with the primary tortfeasors they assist. Both are liable together for the single infringement.

This is so universally accepted, that I’m surprised you even bring it up. If you believe it, then you’re even more ignorant of the law than I am. But I don’t believe you are. Which means that you’re simply being misleading. Again.

So because you misunderstand the law, I’m ignorant? I don’t see it. I don’t lie. I may get stuff wrong, but I try very hard to back up everything I say and to be careful with my words. I hate getting stuff wrong.

One thing I think you’re missing from Flava Works is that Posner said that they couldn’t be liable for contributory infringement for embedding links to infringing videos hosted elsewhere because there was no evidence that anyone clicked on any of the links: “In contrast, Flava’s pirated videos are not sold, and there isn’t even admissible evidence that they’re actually being accessed via myVidster, rather than via other websites, and if they are not, myVidster is not contributing to their performance.” Perhaps once discovery is complete (the motion for a preliminary injunction was filed well before discovery concluded) it’ll be a different story.

And another thing you’re missing is the import of the right “to authorize” in Section 106. While the Supreme Court in Sony said that contributory infringement is not explicitly mentioned the Act, the right “to authorize” in fact is an explicit mention of contributory infringement. As Patry explains in his treatise:

Section 106 grants copyright owners the right ?to do and to authorize? any of the exclusive rights enumerated therein. The committee reports explain:Use of the phrase ?to authorize? is intended to avoid any questions as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance.

In Sony Corp. of America v. Universal City Studios, Inc.,2 the Supreme Court stated that: ?the Copyright Act does not expressly render anyone liable for infringement committed by another.?

Lower courts have wrongly assumed the statement is true, but as the committee reports just quoted indicate, it isn’t: the right granted in section 106 ?to authorize? is an express statement of contributory infringement.

6 Patry on Copyright ? 21:43.

The legislative history is clear that the right “to authorize” was meant to cover contributory infringement. Other courts have picked up on this, but there is definitely some confusion on the point caused by the Supreme Court’s careless statement to the contrary.

Have a good weekend, Karl. I won’t have time for another lengthy response today.

Let’s see if we can reign this in.

Do you agree that under the Ninth Circuit’s reasoning in Perfect 10 v. Amazon.com, a party that knowingly links to an infringing file can be liable as a contributory infringer for whatever infringement takes place by others who use that link?