from the seems-like-a-problem,-no? dept
The staple article of commerce doctrine must strike a balance between a copyright holder's legitimate demand for effective -- not merely symbolic -- protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.Furthermore, for those who argue about what "substantial" is, it's important to note that, in the early days, nearly all of the usage of these new forms of content recording and delivery were mostly for infringement. But that's due to the content industry's own slow nature to adopt these tools. Indeed, when the Betamax was found legal, less than 9% of uses were found to be non-infringing -- and that was deemed more than enough. Even the argument that all that other infringing use pulls people in was rejected in the Betamax lawsuit, where the court noted:
Unlike cameras, typewriters and Xerox machines, whose primary market is derived from non-infringing uses, there would be little, if any, market for VTRs if they could not be used for infringing purposes. Petitioners' unwillingness to devise a technological means of preventing copying of copyrighted works makes plain that without the ability to make unconsented copies of the copyrighted motion pictures owned by respondents and amici, there would be little if any market for VTRs.But they were still found to be legal.
Fast forward to today, and TorrentFreak points our attention to a new study looking at the substantial non-infringing uses of Megaupload, and finds that, as with the Betamax, even if there was wide infringement, not only was it "capable of substantial non-infringing uses," but it was widely used that way.
For Megaupload (MU) the researchers found that 31% of all uploads were infringing, while 4.3% of uploads were clearly legitimate. This means that with an estimated 250 million uploads, 10.75 million uploads were non-infringing. For the remaining 65% the copyrighted status was either unknown, or the raters couldn’t reach consensus.Obviously, there are sample size issues here, and the fact that the majority of the files are "unknown" may be a limiting factor. But, at the very least, it appears that there were many, many, many legitimate uses of Megaupload, all shut down and destroyed without letting their owners get the data back, and without a trial to discuss those non-infringing uses, and whether or not the platform itself was legal.
Using the most conservative estimate the findings show that the Megaupload raid took down at least 10.75 million legitimate files. In addition, the researchers found that FileFactory had a highest percentage of non-infringing uploads (14%).