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Repeat Infringers Can Be Mere Downloaders, Court Rules (torrentfreak.com)
A 10-year-old copyright case has prompted an interesting opinion from a US appeals court. In determining the nature of a "repeat infringer" (which service providers must terminate to retain safe harbor), the court found these could be people who simply download infringing content for personal use. The case was filed by recording labels EMI and Capitol against the since long defunct music service MP3Tunes nearly a decade ago. The site allowed, among other things, the ability to store MP3 files and then play it remotely on other devices. The site also allowed users to search for MP3 files online and add them to MP3Tunes service. This is what the recording labels had a problem with, and they sued the site and the owner. TorrentFreak adds: The case went to appeal and yesterday the 2nd Circuit Court of Appeals handed down an opinion that should attract the attention of service providers and Internet users alike. The most interesting points from a wider perspective cover the parameters which define so-called 'repeat infringers.' [...] Noting that the District Court in the MP3Tunes case had also defined a 'repeat infringer' as a user who posts or uploads infringing content "to the Internet for the world to experience or copy", the Court of Appeals adds that the same court determined that a mere downloader of infringing content could not be defined as a repeat infringer "that internet services providers are obligated to ban from their websites." According to the Court of Appeal, that definition was too narrow. "We reject this definition of a 'repeat infringer,' which finds no support in the text, structure, or legislative history of the DMCA. Starting with the text, we note that the DMCA does not itself define 'repeat infringers'," the opinion reads. Noting that 'repeat' means to do something "again or repeatedly" while an 'infringer' is "[s]omeone who interferes with one of the exclusive rights of a copyright," the Court of Appeals goes on to broaden the scope significantly. [...] The notion that the term 'repeat infringer' can now be applied to anyone who knowingly (or unknowingly) downloads infringing content on multiple occasions is likely to set pulses racing. How it will play out in practical real-world scenarios will remain to be seen, but it's certainly food for thought.
and if I shoplift a rack full of CD's it's just one change of shoplifting.
[Fascism Intensifies]
When you give government all these powers to do all this social-engineering and other crap, you can expect that they will be corrupted and conspire against the people with those with wealth and power in the private sector. It's human nature and why the founders did not want the government having the sort of scope and power it does today. The results speak for themselves.
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
We just need one lawyer to start filing lawsuits against the kids of rich people.
First, technically, it's difficult to identify a leecher or someone who only downloads - due to the nature of file transfers and how the various protocols work, you can easily discover uploaders and download complete copies from them (e.g. by finding Napster hosts, bittorrent seeders, etc., and then blocking transfers from everyone except your 'target'). To discover a leecher, however, you have to be a seeder or host and wait for them to download the file from you. And with so many other seeders out there for any file, that doesn't happen often.
Second, even if you did manage to get someone to download the file from you, if you're the copyright owner or acting on the copyright owner's behalf, you put the file online for public distribution! So the downloader can easily argue that they have at least an implied license from you, and they actually obtained a legal copy. Ooops.
Third, even if somehow you get over those two hurdles, a leecher actually can use the "a download only costs 99 cents, so the actual damages due to my infringement are tiny" argument to mitigate the label's giant statutory damage request. This doesn't work for uploaders who are distributing copies, as a distribution license typically costs tens or hundreds of thousands of dollars, depending on the work (Michael Jackson paid about $45k each for the distribution licenses for several hundred Beatles songs back in the 1980s, for example). But a mere downloader isn't distributing to anyone.
And finally, though it would be illegal and unethical, if you were accused of downloading something, you could rush out and buy a copy of it with cash, and then claim you were just legally format shifting (albeit by proxy). Maybe your proxy that you got it from is liable for infringement due to their distribution, but if you can legally rip your own CDs for archival purposes, then simply using someone else's drive (and computer, and network connection) to do it shouldn't create liability for you.
So, yeah, could a label go after a mere downloader for infringement? Absolutely, and that's always been true. Are they going to do so, and potentially spend millions knowing they're going to run into those four potentially insurmountable barriers? Hell, no. Not when moviebuff6969 is seeding 50 films on bittorrent.
Disclaimer: I am an IP lawyer, but I'm not your IP lawyer. This is not legal advice, but is purely for (my own) entertainment purposes.
Because copyright law is bunch of crude analogies hacked together that used the physical encodings of information as a proxy for a creator's financial interests in a work. It worked great in the age of print when mainly you were talking about books which were cheap to mass produce but expensive to copy.
But today, conceptualizing an author's rights to a work as a monopoly on copying leads to nonsensical results. Suppose I download a song to the same computer twice, as can easily happen. Technically because the thing I did wrong was copying, I infringed *twice*; however it hardly does twice the harm to the author's interests. On the other hand if I copy that song once but listen to it a thousand times, you could reasonably argue I'm doing more harm to the author's interest than if I downloaded it a thousand times but *never* listened to it.
It's all just a way to get content creators paid; a ridiculously complex and arcane way, but it's familiar because it's traditional. You can't expect it to make sense, especially by trying to draw subtly different analogies.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.