by Mike Masnick
Mon, Jan 24th 2011 6:51am
by Mike Masnick
Thu, Jan 6th 2011 9:52am
Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?
from the questions,-questions... dept
There are a variety of problems with this reasoning in general, some of which we discussed in our recent post about the liability for sites (such as Twitter) which users use to post links to infringing content. Of course, the general response to this is that the issue of collecting a large number of such links is evidence of contributory copyright infringement in the form of "inducement." And this is where things may get tricky for Homeland Security in pushing its claims. In our comments recently there was a very interesting discussion on this issue, highlighting the fact that there is no such thing as criminal copyright inducement.
It starts out with the recognized fact that linking alone is not direct infringement, but could possibly be considered contributory infringement. However, as we've pointed out for years, contributory copyright infringement is not found in the Copyright Act but, rather, is something that the courts have more or less made up as they went along, as a form of common law. In fact, a few years back when some in Congress tried to explicitly put "inducement" into the statute with the INDUCE Act, Congress chose not to pass it. Instead, the main support for inducement as copyright infringement comes today from the Grokster decision in the Supreme Court, which explicitly notes that the Copyright Act has no such inducement standard but that it comes from common law principles that were developed around civil copyright infringement. There are serious problems with the Grokster court's interpretation of contributory copyright infringement, but we'll ignore that for now and focus on the fact that it really only discussed inducement in civil cases.
In other words, there's nothing indicating that criminal copyright inducement exists. Yes, the courts have said it's possible in civil cases, but there's no such support for making it a crime. It appears that Homeland Security seems to have just made this part up and assumed that such a crime must exist. That seems rather troubling. In fact, in a paper by law professor Mark Batholemew from a couple years ago, he highlights how contributory copyright infringement does not seem to fit with criminal copyright law, if you look at the history of copyright law and the idea of contributory infringement.
The full paper is worth digging into. It goes through the history of contributory infringement in copyrights and patents and, then, compares it to the idea of "accomplice" liability in criminal law (which is, surely, where Homeland Security will claim this made up criminal inducement comes from). Yet, as Bartholomew notes, the situations are quite different:
The analogy between accomplice liability and contributory infringement fails given careful consideration of the reasons behind imposing criminal sanctions on indirect actors. Accountability for accomplices requires a tight nexus between the mental state of the defendant and the ultimate criminal act committed by another. This paradigm cannot be used, however, to structure contributory infringement law given the different theoretical bases for the two secondary liability regimes and the particular evidentiary issues accompanying infringement.The paper highlights the much higher evidentiary requirements to prove any sort of criminal accomplice liability, rather than typical contributory infringement. Yet, from Homeland Security's affidavit, it appears no such effort was made to actually reach the evidentiary hurdles for showing probable cause for criminal accomplice liability. Instead, the focus is mainly (though not even sufficiently) on the standards for civil copyright infringement.
That seems like yet another rather big problem for Homeland Security and the Justice Department with these seizures.
by Mike Masnick
Wed, May 26th 2010 9:47am
US Copyright Group Says ISPs Who Don't Cough Up User Names May Be Guilty Of Inducing Copyright Infringement
from the uh,-good-luck-with-that-one... dept
I can't see how anyone could possibly find Time Warner guilty of inducement for not handing over subscriber info -- especially not under the standards in the Grokster ruling. Those include that the company had to promote that its service could be used for infringement, that they failed to filter out those infringing uses when possible and that the business plan depended on a high volume of infringement. I don't see any of those three things applying to Time Warner and not handing over customer info on subpoenas. This seems like more bluster from Dunlap to try to get Time Warner Cable to just given in and hand over the names, so he can send out letters demanding payment.
by Mike Masnick
Wed, May 12th 2010 2:34pm
from the and-there-goes-another-one dept
You can read the full decision here:
Either way, I'm still wondering if, based on the Supreme Court's ruling in the Grokster case, which solidified this non-legislative concept of "inducement" for copyright infringement (something that Congress had chosen not to put into the law -- despite having the opportunity), if it's possible to create a system for more efficiently sharing files that doesn't violate the inducement standard. In most of these cases, part of the problem is that these sites advertise themselves for the ability to infringe on copyrights, and employees at the sites were active in helping users infringe. As such, you can see how that's clear inducement. But what if a site was set up that didn't do all of those things, but was still widely used for infringement. Would that still be inducement? If so, that seems incredibly troubling. The law should not be set up in a way to outright ban a technology that has a wide variety of useful applications, and is used for plenty of legitimate purposes, even if it's also used (even if regularly used) for infringing purposes.
by Mike Masnick
Thu, Mar 18th 2010 9:33am
from the third-party-criminality dept
KEI has learned that the European Union has proposed language in the ACTA negotiations to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale."Of course, definitions matter here. In this case, the question is what constitutes "rights piracy on a commercial scale." Beyond the troubling notion that these negotiators are using such an inaccurate and imprecise word as "piracy" in such a big agreement, the commercial scale definition is quite broad:
"significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain"Consider this the "let's criminalize The Pirate Bay" clause. Of course, it could also be read as the "let's criminalize the VCR clause" as well -- which is why this is so troubling. It's one thing to add civil penalties and liability to third parties through some sort of misguided secondary liability policy -- but it's really pushing to dangerous extremes to add criminal liability to that as well.
Now, let's look at the potential unintended consequences of such language. It effectively could outlaw Google. Google, without a doubt, can be used to "aid" or "abet" "copyright... piracy on a commercial scale... that have no direct or indirect motivation of financial gain. Now, those in support of this bill will quickly insist that no one is going to use it to shut down Google. And they're probably right, given Google's brand recognition. But the fear is that they would almost certainly use this to shut down the next Google-like company before it had a chance to get very big. This is what happens when you have technologically, economically clueless bureaucrats trying to protect a dying industry. You get bad regulations that have massively dangerous unintended consequences.
by Mike Masnick
Fri, Feb 26th 2010 5:04am
from the can-it-be-done dept
Unfortunately, pretty much every file sharing system/search engine that's gone to court in the US has failed that test miserably by regularly pitching its product for the purpose of infringing on copyright law. In a recent ruling, concerning the torrent search engine IsoHunt, we noted that the judge found inducement in a variety of places in how the site was operated and (more importantly) in comments made by the site's owner, Gary Fung.
Now, in response, Fung appears to be interested in trying to see if he can thread that needle and setup a site that still has the search engine, but avoids any of the things that were flagged for inducing infringement. The key one is the question of whether or not the company/site/owner promotes the infringing nature of its site -- which is one par of the three-pronged test for inducement. Fung has proposed to the court that if he sets up such a site, which he calls isoHunt Lite, there shouldn't be an injunction shutting down the site.
It's an interesting legal question, but somehow I doubt the judge is likely to agree.
by Mike Masnick
Mon, Feb 22nd 2010 2:00pm
from the inducement dept
But, thanks to some screwed up court decisions that have forced secondary liability into copyright law, using an "inducement" standard, it's not hard to see how NBC could make a case against GigaOm for "inducing infringement," and therefore being liable for copyright infringement, potentially leading to a complete shutdown. Now, I hope that NBC Universal is smart enough not to take on this sort of fight, because it would backfire massively -- but, then again, we're talking about a company whose chief lawyer, Rick Cotton, is proud of how difficult NBC makes it to watch the Olympics, and believes that stomping out "piracy" is the key to saving the American farm.
So would NBC have a case? Well, compare what's written in the NewTeeVee article -- which (even with some disclaimers) explains exactly how to get unauthorized Olympics streams with the decision against Gary Fung in the IsoHunt case. In that case, the judge found inducement by Fung for statements that seemed a lot more innocuous than anything in the NTV article.
Now, GigaOm might have a fair use defense, in claiming that it's reporting, but a judge might challenge that, given the nature of the post itself -- and, certainly, we've been told over and over again by copyright holders (incorrecly, but... you know...) that fair use is not a right, just a defense.
Obviously, I think that GigaOm should be free to explain to people how unauthorized access to the Olympics works -- and I'm hoping that NBC Universal isn't so myopic as to go after the site for this post -- but in a world where secondary liability on third parties is "the law," posting anything like what NewTeeVee posted suddenly becomes a potential liability. This is yet another reason why we should be quite concerned with ACTA's intent to lock in this kind of problematic secondary liability on third parties.
by Mike Masnick
Thu, Jan 28th 2010 2:48pm
As EMI Cites Harvey Danger Lipdub As Inducing Infringement, Harvey Danger Singer Says Lipdub Makes Him Incredibly Happy
from the who-did-what-now? dept
That Flagpole Sitta video made me incredibly happy, just when I thought there was NOTHING that could make me listen to that song again. A thousand thank you's.A thousand thank yous... and a lawsuit from your label.
by Mike Masnick
Wed, Dec 23rd 2009 8:39pm
from the ah,-the-old-inducement-standard dept
"Morally, I'm a Christian. 'Thou shalt not steal.' But to me, even copyright infringement when it occurs may not necessarily be stealing."The court seems to think this indicates inducement, but if that's the case, then shouldn't the Supreme Court itself be guilty as well for famously stating in the Dowling case:
"(copyright infringement) does not easily equate with theft, conversion, or fraud... The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over copyright; nor does he wholly deprive its owner of its use."If the first is inducement, isn't the latter as well? Furthermore, the court seems to take a quote that refers to "stealing from leechers" to mean inducing infringement, apparently not recognizing that leechers have a very specific meaning in the BitTorrent world, and the statement appears to have nothing to do with infringing on copyright.
That said, there are some other things that put Fung on much thinner ice, including helping people find certain files and helping explain how trackers work -- though, again, it's not clear that Fung would know for certain that the files being searched for were infringing. The court does find it (reasonably) damning that Fung presented a list of top box office films, with links to pages that asked people to share torrent files that pointed to the films themselves. You can certainly see how that could trigger the "inducement" finding.
But what may be most interesting (or troubling, depending on your perspective) is the court's discussion on the DMCA, which basically says that DMCA safe harbors do not apply if it can be shown that the site turned a blind eye to infringement. If that reasoning is used, it could eventually implicate sites like YouTube, despite rulings like the one in the Veoh case. Expect IsoHunt to appeal, though given the details in the case, it seems quite unlikely that it will prevail. There are too many precedents against this sort of operation, even if the court misinterpreted Fung's statements, which it deems as "most telling" in the ruling.
by Mike Masnick
Tue, Dec 15th 2009 9:48am