If they are making the file available for streaming, and not downloading, then they are infringing the public performance right and not the distribution right.

And also the copying right – which is already a possible felony. I see your point about streaming/performance vs. downloads/distribution, but the point is still moot.

If they are assisting the violation of the distribution right, then they can be a felon. If they are assisting the violation of the public performance right, then they cannot. That’s the disparity the Register is addressing.

There’s a good reason that disparity exists. The only reason to make public performance (or display) a felony, is to jail people who did not make copies of the works, nor distribute them to anyone else. This would directly threaten to put people like theater or nightclub owners in jail for felony charges. Not to mention the artists who perform these works.

You’ve chided the (somewhat sarcastic) “Free Justin Bieber” campaign for spreading “FUD.” But if it’s not applied to people like him, then who does it affect? The sites that intentionally host the content (and the people who aid and abet them, if that standard applies) are already facing felony charges. On the other hand, pirate “link sites” and search engines won’t be affected at all – since they are not themselves infringing on the public performance right.

I don’t see the point in pulling out the case law again when you just deny its import, but I’ll point out that the Ninth Circuit in Perfect 10 v. Amazon said that Google could be contributorily liable for linking.

I’ve never “denied its import.” I have, however, denied that your interpretation of the case law has import. Which is what I am going to do now.

Let’s examine that Perfect 10 v. Amazon/Google decision:

[On the issue of direct infringement of the performance right:] Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen. Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy. 17 U.S.C. 101.

Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. […]

Perfect 10 also argues that Google violates Perfect 10’s right to display full-size images because Google’s in-line linking meets the Copyright Act’s definition of “to perform or display a work ?publicly.'” 17 U.S.C. 101. This phrase means “to transmit or otherwise communicate a performance or display of the work to … the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. Perfect 10 is mistaken. Google’s activities do not meet this definition because Google transmits or communicates only an address which directs a user’s browser to the location where a copy of the full-size image is displayed. Google does not communicate a display of the work itself.

[On the issue of contributory infringement of the performance right:] Google’s activities do not meet the “inducement” test explained in
Grokster because Google has not promoted the use of its search engine specifically to infringe copyrights. […]

Our tests for contributory liability are consistent with the rule set forth in Grokster. We have adopted the general rule set forth in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., namely: “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ?contributory’ infringer.” […]

There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google’s assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable [only] if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps. […]

We evaluate Perfect 10’s arguments that Google is vicariously liable in light of the direct infringement that is undisputed by the parties, namely, the third-party websites’ reproduction, display, and distribution of unauthorized copies of Perfect 10’s images on the Internet. Perfect 10, 416 F. Supp. 2d at 852; see supra Section IV.A. In order to prevail at this preliminary injunction stage, Perfect 10 must demonstrate a likelihood of success in establishing that Google has the right and ability to stop or limit the infringing activities of third party websites. In addition, Perfect 10 must establish a likelihood of proving that Google derives a direct financial benefit from such activities. Perfect 10 has not met this burden.

With respect to the “control” element set forth in Grokster, Perfect 10 has not demonstrated a likelihood of showing that Google has the legal right to stop or limit the direct infringement of third-party websites. […] Google cannot stop any of the third-party websites from reproducing, displaying, and distributing unauthorized copies of Perfect 10’s images because that infringing conduct takes place on the third-party websites. Google cannot terminate those third-party websites or block their ability to “host and serve infringing full-size images” on the Internet.

The analysis was almost exactly the same for Amazon.

Note the parts I highlighted in bold. It showed that you cannot be held liable for merely providing a link to infringing content. You must also have actual, constructive knowledge of the infringement, the ability “take simple measures” to prevent the infringement, and fail to do so. Unless all three conditions are met, you are not a contributory infringer. And in no case could merely providing a link be considered inducement or vicarious infringement.

The argument that it’s a “much higher bar” misses the point. Yes, it would have to be proved beyond a reasonable doubt.

That’s not what I meant, and I’m sure you know it. You could be guilty of inducement, contributory infringement, or vicarious infringement, but still be innocent of “conspiracy” or “aiding and abetting.” The “higher bar” isn’t the standard of proof, it’s that civil liability and criminal accomplice liability are not the same thing at all. Showing that someone is guilty of secondary infringement under civil law – even beyond a reasonable doubt – is insufficient to show any form of guilt under criminal law.

The classic definition, when applied to copyright, is espoused in U.S. v. Rose:

In order to aid and abet another to commit a crime, it is necessary that a defendant wilfully associate himself in some way with the criminal venture, that he willfully participate in it as in something that he wishes to bring about, and that he wilfully seek by some action of his to make it succeed. Thus […] if you find that the defendant wilfully associated himself with others who were reprinting or publishing the allegedly infringing music books, and that he wilfully participated in their venture […] through acts of his own calculated to make their venture succeed, even though he did not do the actual reproduction himself, then you may find that the defendant was an aider and abettor.

There’s no way in Hell that merely providing a link should rise to that standard.

It’s not a red herring at all. Mike was arguing that they should just go after the direct infringers. I’m pointing out that indirect infringers are just as culpable.

Actually, if the content is user-generated (as most “pirate sites” are), then they would already be going after the indirect infringers. The direct infringers would be the users; the secondary infringers would be the sites that host their content (just as Napster and Grokster were secondary, not primary, infringers).

But, again, this has nothing to do with jurisdictional issues.

Those aren’t reasons to have a disparity between reproduction/distribution and public performance.

Certainly they are. Infringement of a public performance right, alone, should simply not be a felony. The punishment for publicly performing a work without permission massively outweighs the damage to the public caused by that infringement.

We already have too many punishments that are far too draconian to be just. Adding more won’t make the law any more just.