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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.
Just wait until they find infringing content on a server that supports HTTP byte-range requests. Just using a download manager to get a single file could be 10-15 counts.
[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.
Copyright infringement isn't stealing.
If you steal a rack full of CDs on Tuesday and go back and steal another rack full of CDs on Wednesday, aside from stealing from a very stupid shop, I'm pretty sure you would get two separate shoplifting charges.
"Lack of speed can be overcome. In the worst case by patience." --Znork
Which, as we all know, is a protected usage.
Sadly, I'm a bit lazy about finishing the parody versions, but aren't we all?
-- Tigger warning: This post may contain tiggers! --
how many Sony root-kit related individuals went to prison?
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.
But in this case, acquiring the song the first time would be the only act of infringement. After that, you're only utilizing content that was previously infringed. You aren't charged with shoplifting every time you listen to a stolen CD.
By founders you must be forgetting about the Hamiltonians who definitely did want all that stuff and is why instead of not giving the government power, the Constitution contains so many provisions against using the power the government was given because the Hamiltonians knew they could go back on all the exclusions they were granted.
I know this guy is trolling, but I actually want to try one of those sandwiches.
Run from the zombies, and be careful not to infringe trademarks and copyrights on zombies while you leg it.
John_Chalisque
So I have to verify the copyright status of everything I view on the internet before I view it lest I commit a crime?
Do not seed torrents.
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.
The judge got Cubs tickets from EMI, fucker those were my seats.
Abandonware and right to repair need to fixed as well.
Hell there have been places that have bought out the rights IP of some place and then they go after people who are selling repair parts / shunting down websites with free repair guides. Some even want people to pay aging for software that own just to be able to run it in a VM on newer hardware.
Find a torrent you want to investigate.
Join that torrent. Don't seed. Just advertise you have the whole thing.
Log any requests, but serve up bum content; fail checksums, or hit protocol errors, simply time out, seed bad data at 1B/s, whatever. You're not giving that tacit license, since you're not feeding proper data.
It's a good thought, but there's the problem - you're not serving up the copyrighted work, so therefore, you don't know that the accused recipients downloaded the copyrighted work... and in fact, you explicitly know that they didn't, because they got crap. Like, if I record myself farting into a microphone for five minutes and then upload it to a network with the label "Creed - new hot single!.mp3", even though you may not be able to tell the difference when you download it, I couldn't sue you for copyright infringement of Creed's new song, because I know for a fact that you didn't make a copy of Creed's new song.
So, yeah, by uploading bad content, you don't give an implied license to the good content, but you also can't be sure you're finding anyone who got the good content.
And what happens when you go to any website with copyrighted content? You download it, making a copy, adding it to ram, making a copy, adding it to your web cache, making a copy. Yet no one considers any of those unlicensed acts copyright infringement.
Look, Slashdot claims that the words posted here are owned by the poster. I do not give you the right to copy these words into your memory, your web cache, your network, or your stream. Does that mean I ought to enforce my lawful rights and sue you for up to 174,000 per copy you have made? Are you willing to settle out of court for 1000 each. I await your paypal details for my 4,000. Ensure delivery in USD.
The entire reason Jammie Thomas-Rasset was ordered to pay $222,000 was because she purportedly uploaded 24 songs to thousands of people. She was distributing the songs without a license from the copyright holder - something Copyright law expressly prohibits. In other words, by using copyright law crafted to stop wholesale copyright infringement, Capitol Records cast Ms. Thomas-Rasset as the mastermind of a bootleg music business and won a judgement of $222,000 against her. That judgment effectively indemnifies people who downloaded music from her uploads. She paid for the crime, not her "customers". When you shut down a counterfeit CD ring, you do not then go after the people who bought the illegitimate CDs.
If you throw all that out the window and instead argue that it's the act of downloading a song which is infringement (which current copyright law does not support), then this becomes really easy. Each downloader becomes liable for a single copy (the one they downloaded). And an appropriate fine would be, say, 3x or 5x the cost of buying the song from a legitimate source. So about $3-$5 per song. Frankly I think that's a much more sensible approach to copyright enforcement than ruining people's lives and depriving them of Internet service because they shared some music files.
But I suspect the *AA is going to want their cake and eat it too, and want to assess hundred-thousand dollar judgments against downloaders as well. This is a slimy and illogical (should be illegal) tactic of turning n crimes into n^2 crimes. If 10 people share a file and each copyright violation costs $100, then there are a total of 9 illegal copies made, and the total damages should be $900. But by the *AA's nonsensical reasoning, each person is responsible for 9 counts of copyright violation, so each person should pay $900, resulting in $10,000 in damages awarded. The math simply doesn't add up - they'd be getting $10,000 in court awards when the law has determined that they've only suffered $900 in damages.
You can't have it both ways. Either one person is liable for all the copyright infringement and you can ruin them financially. Or each person is responsible for a single copyright infringement (the file they downloaded) and you can only fine them a few times what it would've cost to buy the file legitimately.
So if you use a copy of Microsoft Office that you didn't pay for but got from "a guy", you can't have civil action against you?
I think you'll find that's not how copyright works, has ever worked or will ever work.
Because at that point, it's not really *copy*right you have to worry about, it's licensing for the original work. To copy it would have been infringement, and you're using an unlicensed copy whether you were the one to copy it or not.
The problem is exactly that judges spent too long reading the law, because that's what's enforced and convicts you, not the dictionary definition unless there is absolutely no legal definition anywhere that's been previously established by a court of law or a legal statute.
Actually, that's unlikely to be true.
They're liable to charge you individually for each on if they're in a mood. The DA may simplify it down, but it's quite common to have many booked charges related to a single 'charge' as people see it. Just ask anyone who's been charged for 14 counts of this and 137 counts of that which happens all the time. Hell, punch someone in the face and you'll probably see 4 or 5 charges as a result.
You can get rich if you own a politician, but you have to be rich to buy one in the first place.
Actually, they are correct.
Copyright is about copying and distribution, not about use or consumption. It is quite specific. This decision far overreaches that.
There is a VERY solid natural; law reason for this.
If it were otherwise, and you purchased (or were even gifted) an original looking item, that ended up being a copy, YOU would be
responsible for that fact. That would be a legal disaster to say the least.
However, the court has missed that rather important distinction in this case, and extended responsibility to the receiver of
material. If this was correctly interpreted then you would be legally responsible for the correct copyright status of everything you
use or own.
Taken to its logical conclusion, if a television broadcaster accidentally showed a movie free to air which they were not licensed for,
then every viewer who watched that would be culpable.
See how that works? See why the law was NOT written that way?
This, and the DMCA is ALL about copyright, Licensing is a completely separate issue, and one they did not attempt to address.
Licensing is about ownership, Copyright is, and the Digital Millennium Copyright Act are, strangely enough, about COPYING (and
the associated act of distribution).
Sorry to let facts get in the way.
Suppose I download a song to the same computer twice, as can easily happen. Technically because the thing I did wrong was copying, ...
No, you're making the same mistake as the judge in the article. The one who makes the copy and distributes it across the Internet is always the uploader, not the downloader. You didn't make a copy, the person who uploaded the file to you made a copy. The DMCA should not be considered applicable to "mere downloaders" because "mere downloaders" aren't doing anything which would infringe on copyright, namely making or distributing copies or publicly performing the work. That's all on the uploaders.
You do make a very good point, however, about the way the impact to the copyright holder for each copy is grossly overestimated when calculating "damages".
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
Anyone who has been rick-rolled more than once is a repeat infringer.
Inheritance is the sincerest form of nepotism.
They went bankrupt in 2012. Who's paying for the layers? Or did it take 4 years for the court to issue a ruling?
Woah there pardner. I went to an outlet, they said we own this and watch this commercial and you can have it, exchange of labour for the product. So I provided them with the use of my time, something I consider to be of valuable worth and in turn they let me download the free copy they promised me in return for my time. Consider anyone, absolutely any can buy a copy of that content and should they so choose sell it by what ever means possible and to whom ever possible, keep in mind the actual real value of that content as an individual copy, say a $1 (most of the other costs being advertising, distribution, retail premises, sales staff, profit margin, profit margin, profit margin - more than one bite at that particular cherry, which they in fact claim to be avoiding and hence only one profit margin instead of three, making it cheaper so they claim).
So they can not charge for theft or even copyright infringement (well not you, the other individual definitely), just the very slightest bit of tax evasion, you did not pay income tax for IRS percentage of the revenue earned, the worth of the content provided. Well you really did not get paid, as you copy is infringing and worthless and you can not sell it.
Chaos - everything, everywhere, everywhen
Well, I'm presuming the downloader is making a copy on his local storage for later use. If he's streaming it's different (sort of).
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Hamilton and Madison however both also believed government should be as big as it can be, and democracy with it (which may have been an early stab at arguing for universal suffrage). Madison wrote in the federalist papers that making democracy and government as big as possible was a crucial vanguard against corruption (the exact opposite of what libertarians think) - because big organisations get filled with competing interests, and the more competing interests there is the harder corruption becomes - there is always somebody who will personally benefit or be able to advance the interests of his group by ratting you out.
The US government - even at it's barebones just-the-congress-and-white-house is already one of the largest on earth, and that's how it was STARTED. Two houses of congress, each with hundreds of members - the average parliament has half as many members as the house of representatives, and even in countries with two (common) that's still typically half the number of lawmakers. You appoint several representatives per state - two senators for example, while most countries get one representative per represented area (which, granted, is usually smaller regions - typically covering a city or such). Then there is the state governments below that, which are significantly larger and more powerful than the average provincial government - and the metro-level governments below that: ditto.
Same with welfare - having a welfare system has been part of the US since it's foundation - indeed it was one of the requirements for statehood, before a territory could become a state it would have to have a welfare system implemented. Andrew Jackson refused to sign Brigham Young's appeal to grant statehood to Utah until Utah had a welfare system that extended beyond the membership of the mormon church (and was not run by said church).
And frankly - they were right. The most corrupt governments in the world - are also the smallest and provide the least services, with the least number of government employees. The most corrupt government of all is the dictatorship - which ultimately shrinks the all the powers of government into a single person. The most successful nations on earth, with the highest standards of living and the lowest levels of corruption are also the nations where the governments are the largest, the markets the most heavily regulated and the government-services cover essential public needs the widest.
In a small government like in the D.R.C. you can get a sitting president refusing to step down as he approaches a term limit - and the government unable to budge him leading to violent clashes in the streets as the citizens try to do the government's job for them (and come up against the loyalist parts of that government and it's military apparatus - so much for the gun-nuts assertion that in a revolution the soldiers would side with the people, the world is full of revolutions and that NEVER happens) - clashes which have killed tens of thousands in the last few months.
Now imagine if Obama tried to pull that stunt? Not that he is likely to - I think he can't wait to get the fuck out of that house - but just imagine if he did. The republicans would be in uproar and they would remove him from the white house, by force, if needed - and they military would not obey him because there are enough republicans in the senior command of the pentagon. It would take seriously weird circumstances to even get to a civil war, in reality no president would try because the odds of success is just too low - the government organs set up to provide oversight over him are just too large and powerful to try and resist.
That is whats good about a big government - but one constrained by a constitution that strictly limits what they may apply their sides and power to. Competing interests - so that if anybody tries to abuse their position too much, there will be somebody else who can score big by busting their ass.
Of course, what Madison could not have predicted was a world where a wealthy elite could
Unicode killed the ASCII-art *
Quoting the article:
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.
“Copyright infringement is a strict liability offense in the sense that a plaintiff is not required to prove unlawful intent or culpability, and a user does not have to share copyrighted works in order to infringe a copyright,” its opinion reads.
That's an interesting copyright infringement definition. I know the MPAA or RIAA are not liable under the DMCA when they misuse it to take down the video of a bird singing or a Ubuntu iso file. But in doing so they are interfering with the copyright holder's exclusive distribution right and thus are 'infringing' based on plain copyright law and thus could be sued on that basis. Furthermore we know they abuse the DMCA regularly and thus they are 'repeat infringers' so their ISP should cut off their Internet access, even if they don't illegally share copyrighted works. Sounds promising...
Abandonware and right to repair need to fixed as well.
Right to repair needs to be fixed so that we can preserve our precious resources, I'm with you there. Abandonware can be fixed by just saying no to closed source software, and the cultural impact of losing some games is pretty minimal.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
I get you're trying to make a point, but you are likely incorrect. When was the last time you saw a single crime ever get only one charge? They usually have half a dozen charges in order to force you to plea.
I want RIAA to eat a bag full of dicks as much as anyone else.
But if a burglar robs my house and they catch him and his fence in the act of selling my stuff, I want both of them to go to jail.
Is this a thing with civil suits? There's like a zero-sum for damages incurred or something?
For many things, you can't avoid closed-source software. There's more than games that can be abandonware; there's books, music, videos, and more, and losing them can have cultural impact. It wasn't as bad back when we had reasonable copyright duration, since if you had a copy of something and couldn't find the copyright holder you could wait for 14 or 28 years from the copyright date (and I believe the copyright extension would be a matter of public record, if you cared to check). Nowadays we have ridiculous copyright lengths and short-lived formats.
I did see a proposal to fix abandonware by making it OK to use something if a due-diligence search was made for the copyright holder. I have some familiarity with how due-diligence searches go: occasionally, there used to be a newspaper ad for unclaimed money. Legally, whoever had the money had to do a due-diligence search for the owner. It was interesting to see what a due-diligence search can fail to find, like the University of Minnesota. What the proposal would have done is allowed someone to take something copyrighted, look in the wrong phone book for the copyright holder, and made copies freely, to the likely detriment of the copyright holder.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
IANAL, but I've heard that actions are never performed by machines. They're performed by humans. If I download something, I'm the one performing an action that causes a copy. Consider it something like the host having a copy machine sitting around with a copyrighted document in it. The person who pushes the button is the one who makes the copy.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
I simply can't understand what you're trying to say in your first paragraph, but someone who makes a copy without a license (or other authority; for example, if you have a legitimate copy of software you can make all necessary copies necessary to run it) is infringing copyright, and it's normal to sue for statutory damages if it's a registered copyright, regardless of whether there was any actual loss.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
A single 5MB file will be 5,242,880 counts of infringement, because each byte will be counted separately.
The byte is just an arbitrary abstract boundary, but individual bits are a hard limit. A single 5MB file will be a bit over 41 million counts of infringement.
I'm not sure of copyright law here, but it's possible to identify either the uploader or downloader as the creator of the illegal copy and the other as involved in the infringement. Pass that one by a copyright lawyer before trying it in court.
As far as damages go, if there's statutory damages specified the wronged party doesn't have to establish actual damages. The MAFIAA doesn't have to establish that there was any harm suffered as long as the law says they don't have to. My idea of statutory damages is that they should be for cases where it's hard to determine the amount of damages, and should be proportional to the probable actual harm (perhaps a small multiple of a high estimate), but I'm neither a lawyer nor a legislator.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes