As TPB only point to something that points to something that points to chunks of something that may be copyrighted, there's no way any sane person can call this 'direct'. It is extremely indirect, if anything.
Yes, I know how it works, and I agree. That is indirect.
However, the earlier poster was wrong; contributory infringement is a form of indirect infringement. In fact, it would probably cover that situation quite nicely. The other forms of indirect infringement: vicarious infringement and inducement to infringe, also might apply, depending on the specific factual scenario.
Sweden might not have these kinds of laws. I don't know. But the US does, and TPB would easily have been shut down for illegal activity had it been in the US.
It is quite similar to Napster, in fact, which never directly infringed, but did provide pointers to users to one anothers' computers so that they could infringe. Napster was found liable for this indirect infringement.
Your problem is, you didn't closely read my post. I never said that TPB was a direct infringer, I said that contributory infringement is a kind of indirect infringement.
I hope that when the legal repercussions of that raid are settled, TPB moves back to Sweden where it will be protected against repeats due to the fallout of this affair. The raid itself was illegal, the minister of justice's involvement in the warrant was highly illegal and the execution of the raid was a massive abuse of power, complete with the covered cameras, 200 servers removed without warrant, and the refusal of the police to comment to the press on the many issues at hand.
Actually, we don't really know that. I don't know whether TPB has been operating legally or illegally, given the laws of Sweden, since I'm unfamiliar with those laws. I bet you're unfamiliar with those laws too. I wouldn't rely on TPB as a source of accurate information about those laws, as they are far from disinterested in this. What we really need is a Swedish copyright lawyer to discuss the subject.
TPB can ONLY be discussed in relation to swedish law, My comments were made in that context.
I don't think so. Remember, this whole thread has originated from the post where Anonymous Brave Guy said:
I think a lot of people here aren't looking at the bigger picture. Whether you like it or not, the vast majority of the international community in the western world does agree on some basic legal principles:...
Helping someone to break a law is in itself illegal.
And that's where you responded, saying:
Contributory infringement has to be direct, not indirect. Pointing someone to a computer that has a chunk of a file is indirect. Giving them that chunk is direct.
Which, as I've already pointed out, is wrong in that contributory infringement is indirect, and is never direct.
I think the context of your original comments was pretty clear, especially since you didn't even mention TPB until you responded to me.
The Pirae Bay's logo and name are immaterial... if they called themselves The Police, that wouldn't have any probative value as to their intent.
Really? They would be perfectly material here in the US. The following is from the Supreme Court opinion for Grokster.
[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Here, the summary judgment record is replete with other evidence that Grokster and StreamCast, unlike the manufacturer and distributor in Sony, acted with a purpose to cause copyright violations by use of software suitable for illegal use.
Three features of this evidence of intent are particularly notable. First, each company showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. StreamCast's internal documents made constant reference to Napster, it initially distributed its Morpheus software through an OpenNap program compatible with Napster, it advertised its OpenNap program to Napster users, and its Morpheus software functions as Napster did except that it could be used to distribute more kinds of files, including copyrighted movies and software programs. Grokster's name is apparently derived from Napster, it too initially offered an OpenNap program, its software's function is likewise comparable to Napster's, and it attempted to divert queries for Napster onto its own Web site. Grokster and StreamCast's efforts to supply services to former Napster users, deprived of a mechanism to copy and distribute what were overwhelmingly infringing files, indicate a principal, if not exclusive, intent on the part of each to bring about infringement.
Sure, the name might not be probative all on its own, but it is certainly a factor.
No, because you had conflated direct infringement and contributory infringement. In fact, contributory infringement is a type of indirect infringement.
The servers at TPB do NOT give anyone a chunk of the file. They are NOT distributing.
I know, and I know how torrents work. I agree that they are not directly infringing. But they are likely contributory infringers, and depending on what their site is like, they might be vicarious infringers. Whether they're also inducing infringement is difficult to say, both because I'm not aware of precisely what they've been doing, and because there's so little caselaw; things are still developing there.
I agree with you there; since the process is entirely automated, there is no knowledge, same as a telephone network carrying a conversation where two people are plotting a conspiracy.
However, when TPB gets a letter from a copyright holder, which has been known to happen, they're put on notice and have knowlege. This is precisely how things went down with Napster, you'll recall. And while Grokster took care to avoid being a contributory and vicarious infringer, they ended up being liable for inducement.
Of course, with these last couple of paragraphs, we've moved from a general discussion to a discussion of TPB specifically, and US law would not really apply to them.
I'm sorry, but pretty much everything in your post is wrong.
Contributory infringement has to be direct, not indirect.
No, contributory infringement is inherently indirect infringement, also known as secondary liability. Maybe you're getting confused by the fact that there must be an underlying direct infringement which is contributed to.
Napster, for example, was found liable for contributory infringement because they were aware of infringements on their system (having been expressly told about them by copyright holders) but nevertheless continued to materially assist the users who were directly infringers. All Napster did was to provide a technology and and index of links, remember.
They're not alone. It's actually not that uncommon to see linking result in liability.
Pointing someone to a computer that has a chunk of a file is indirect. Giving them that chunk is direct.
Also your example fails, because giving someone a file will not be contributory infringement, it will be direct infringement, in the form of distribution.
The difference is important - otherwise, your electical company, your landlord if you rent/your bank if you have a mortgage, the company that made your computer, the chair you sit your ass in to type, and the boss who pays your salary so yo can afford all the shiny toys, would all be guilty of contributing to infringement, since without them you wouldn't be able to infringe the copyright. Oh, and the government as well, since they regulate the telecom industry and provide the environment that allows you to do all these things.
No, for two reasons. First, the law differentiates between factual causes and proximate causes. For example, let's imagine that A negligently runs a red light and hits B. B can sue A, but he can't sue A's mother. A's mother is certainly in the chain of factual causation: if she hadn't had A, A wouldn't have hit B. But she is too far removed from the car crash for liability to stand.
Second, one of the elements of contributory infringement is knowledge of the infringement at the time of the contribution. It is incredibly unlikely that any of those entities will have the slightest idea what you're doing at the time when you download something unlawfully. Therefore they're off the hook.
Since his website has a "screening process" that is a mere formality, it does not qualify for SCA protection.
Mm. As it happens, I recall another case with similar facts, involving a primary school student who created a website. The screen failed there too.
Seriously, the number of non-lawyers sounding off in the last three days has gotten on my nerves; there's a lot of misinformation on slashdot (surprise surprise) but it always seems to be worse when it involves the law...
I hear you. Practically all I ever do when I have time for/. is to correct misinformation.
Contributory infringement requires that Google know of infringing activity and materially contribute to it with that knowledge. But they don't really know all that much; do they know, when they give search results to a user, that the user is going to infringe? No, because they don't know that what they've pointed to in the search results is there legally. The mere capability of their search engine to be used for infringing purposes won't be held as sufficient by itself to impute knowledge to Google, if it has substantial lawful uses, which it does.
Vicarious infringement requires that Google have the right and ability to control the behavior of the direct infringer, and that they get a direct financial benefit from the infringer. This seems unlikely, as Google seems to make money simply by being a large and easy to use search engine, rather than one that is focused on infringing material. Still, there is a credible argument to be made here.
Inducement to infringe requires that Google provide its service with the intent of promoting its use to infringe as shown by clear expression or other affirmative steps to foster infringement. The facts to support the argument that this is what they're doing just aren't there. Google doesn't encourage people to use their search engine for unlawful activities.
Nevertheless, these theories fail, because Google has taken the necessary affirmative steps to protect itself with the 17 USC 512 safe harbor. Essentially, Google is protected so long as they respond to proper takedown notices, maintain a section 512 designated agent, etc. So long as they're within the protection of 512, it doesn't matter whether they'd otherwise be liable.
The DMCA has nothing to do with it. They are illegal in the US, because the US treats contributory infringement (i.e. knowingly helping someone infringe), vicarious infringement (i.e. profiting by another's infringement), and inducement (i.e. strongly encouraging someone to infringe in conjunction with assistance) as being punishable just as much as direct infringement. The idea of secondary liability is fairly common in our legal system.
Whether Sweden has anything like this, I have no idea.
Since european court has enough power to enforce member states to change their laws (its compareable to american superior courts on US of A level e.g. forbidding the State of Washington to open an airport named Washington Airport:-) or such... and I expect quite some americans to fall for this argument trap - look up Washington vs. DC), it is highly unlikely that anything overturns this rule within the next few years.
FYI, no courts in the US can compel legislative bodies to enact or repeal laws. That would interfere with the seperation of powers that is part of the heart of our system of government. Unconstitutional laws generally remain on the books, they're just unenforcable as a practical matter. Also, any court can find a law unconstitutional, whether it's a state or federal court, whether it's a trial or appellate court. The higher up the court, the more its opinion matters, but they can all do it. There's no federal superior court. There is one federal Supreme Court though, so perhaps that's what you meant.
Lastly, we here in the US generally call the polity in the northwest 'Washington state,' and call the district on the east coast 'DC.' Given how far apart they are, and meaning that can be inferred from context, confusion isn't that common. (And Washington state is about 185,000 square kilometers -- it has a lot of airports, named after the municipal areas they serve)
No, the first one, the one he made whilst working at HP, was the Apple I. The Apple II came later. This is why the number two is in the name, because two comes after one.
You might not have known this, but Apple often numbers their computers in this fashion. For example, there was not just the Apple I, and II, but also the III. The LC, LC II, and LC III. The Classic and Classic II. The Color Classic and Color Classic II. And several other examples. More if you allow for bigger jumps in numbering (e.g. Power Macintosh 8100, which was followed by the 8500).
Where the hell did you get your information from? Did you put it together from what you read on the back of cereal boxes?
Jobs and Woz were introduced by Bill Fernandez, a mutual friend. Jobs was still in high school at the time. Jobs never worked at HP. He went to college, had some odd jobs, went to India, worked at Atari for a little while (and would bring in Woz to give him a hand), and eventually they started Apple.
Jobs didn't design a thing about the Apple I. He certainly got to hear all about it -- they talked a lot -- but it was all Woz. Pretty much the same for the Apple II and Disk II controller, though he was taking some requests at that time (e.g. 'make a floppy drive work on the Apple II in time for the next trade show'). And that was largely it. Woz assisted on some other projects, and did some of his own things apart from Apple, but those are his three triumphs, and he basically did them single-handedly. Plus he wrote a lot of the key software as well, so the hardware was fine-tuned for running the software, and vice-versa. Those machines would not have been nearly as great as they were if more than one person had been making them.
it has generally been held up by the courts as meaning the entire bill of rights applies as much to state and local governments as to federal.
No it hasn't. For various reasons, the courts approach this on a right-by-right basis. They have not incorporated all of them (especially since we're really only talking about the first eight), and sometimes only have incorporated parts of them. It'd be accurate to say that most or nearly all of the guarantees in the Bill of Rights have been incorporated, but it's not accurate to say that the whole thing has been.
the SCOTUS has sided against the publisher assuming that sale is acceptance
Do you have a cite for this? Remember, that last case you cited was not the Supreme Court, it was the District of Utah.
Yes. It also doesn't mention any SCOTUS ruling specifically covering the validity of EULAs.
That's because it says "The first-sale doctrine as it relates to computer software is an area of legal confusion... leading to conflicting court opinions... which have not been resolved by the Supreme Court."
The Supreme Court hasn't discussed EULAs. In fact, it is astonishingly unlikely that they ever will, since it is a matter of state law, not federal law. State supreme courts are the final interpreters of state law, and their decisions on matters of state law are binding on the federal Supreme Court (which is only supreme in matters of federal law). There's also fifty state supreme courts, and they don't have to agree on anything.
Congress could step in and create a uniform law, but this seems pretty unlikely. And besides, I can't imagine that it would be anything but pro-EULA until we have a sea change in Congress.
But innocent people ARE still wrongly accused and convicted. The lucky ones are released a few years later. Some are pardoned after they are executed.
What about those criminals who everyone knows are guilty as hell, yet are let off because of a technicality?
The system is by no means perfect.
That's true. However, we're looking at a couple of different kinds of imperfection there. In the first case, the state is acting imperfectly in that they're going after the wrong guy. Also, the defense is acting imperfectly, in that they aren't managing to win. In the latter case, the fault is with the state again. There's no such thing as a technicality. If the police violated the Fourth Amendment or something, then it's quite intentional that the state lose the case; law enforcement has to protect us, but it can't run roughshod over us in the process, or else we're just replacing one danger with another. And let's remember that 'everyone knew' that the Earth was flat, and that there were witches who were in league with the devil. What 'everyone knows' isn't reliable, and isn't safe to be around.
The "do no harm" thing w.r.t a murder suspect would be "a bad thing" if the suspect was indeed the murderer, but the lawyer successfully argued his case and got him off, at least IMHO.
So if the prosecutor had no idea who was actually the murderer, randomly picked a name out of a hat, and only by sheer luck it was the correct one (not that he knew that), it would be a bad thing to defend the murderer?
I'm not seeing that. The murderer is a bad guy, but the prosecutor who doesn't have to prove his case is worse. Most of the time he not only will punish the innocent, but he will fail to punish the guilty. It's more important that he do his job right. It's safer for most of us, and it's more successful at doing what is intended.
Civil rights guarantees -- such as the means by which evidence can be gathered, or the right to be defended, or the right to a jury -- are all there to protect the innocent and limit punishment to those who are proven to be guilty. If a high standard and burden of proof are not required, then it is a certainty that justice will not be done.
Well, you said that this was a Supreme Court case. What you linked to, however, was a decision issued by a District Court. This means that the only precedential value it has is influential. No courts are bound by this decision.
Unfortunately, most courts that have had these cases, though not all, have been siding with enforcing EULAs. Courts aren't obligated to follow this case, and most of them don't, finding the ProCD line of cases (which are binding on some courts) to be correct.
You should probably carefully read through the Wikipedia article you linked to. It does point out that there is a split in the courts on this matter.
Oh, we have an oath. They vary from jurisdiction to jurisdiction, of course. I practice in Massachusetts, so the oath I took is as follows:
I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.
I certainly don't see how there'd be conflict with defending a murder suspect. It's important to force the state to prove their case, lest innocent people be wrongly accused and punished for things they didn't do.
The first sale doctrine is that the distribution right of copyright does not preclude sales, lending, etc. of a particular copy of a work that occur after the copyright holder has sold that copy. Note that first, it has been shrunk in recent years, at the behest of the music and computer industries such that it is now illegal to rent sound recordings or software, with some limited exceptions (e.g. console software, library lending).
To date, first sale has not precluded the possibility that the copyright holder would create a contract with buyers that limited subsequent sales. First sale only says that he doesn't have power over subsequent sales automatically as part of his copyright. EULAs try to exploit this limit on the scope of the first sale doctrine, and have had significant success in doing so. There have not been any serious assertions that the first sale doctrine precludes contracts such as EULAs.
There have been serious assertions that state contract law would, but this depends on the contract, and the state. In most jurisdictions, the pro-EULA side appears to be winning that battle. Since contract law is a state law matter, you'll never see something like a federal Supreme Court decision that settles the matter. And while federal courts might have to deal with the issue from time to time, they're bound to follow state law on the subject.
First sale is codified at 17 USC 109.
Section 117 deals with issues involving reproduction of computer software, but it is generally inapplicable because it too is subject to being undercut by EULAs. However, I don't really see how it is of any particular interest to us here.
Again, comparing with UK law is interesting, since transient copies are explicitly exempted from copyright infringement considerations (the copying must be essential to the operation of the machinery - but in the case of a web page or mp3 file, it clearly is).
We have something similar to that for computer software in 17 USC 117, but it's sufficiently weak that it hardly ever really comes into play. Instead, web browsing relies upon implied licenses from the conduct of the copyright holders that put the material online to make copies sufficient to view the material. Sometimes there are express licenses, but it's uncommon in my experience.
And in cases like Intellectual Reserve, where the copyright holder didn't put the material online and didn't want it put online, the license isn't there.
In effect, it gives a green light for litigants to pursue people who have even seen objectionable material on the Internet, without redistribution. That's got to be pure gold for the Scientologists. Hell - where does this place ISPs who operate web proxies?
That case was actually about copyrighted religious tracts being put online by someone who opposed the religious organization, so yes, I'm sure the Scientologists like it. While this could support an open season on people who see unlawfully distributed material online, that's not really what it's used for, however. I only put up an excerpt from the case, but basically what it was, was this:
The defendant, who knew that the material was not supposed to be on the Internet, linked to it from his web page. Other people, unrelated to the defendant had put the material online. People browsing the web could follow the defendant's link and see the offending pages. In the US we have not only direct infringement (e.g. the defendant infringes on a copyright personally) but several varieties of indirect infringement (e.g. the defendant is involved with someone else's direct infringement). So, for example, if I materially contribute or encourage you to infringe, and I know that you'd infringe at the time I did that, I am a contributory infringer, and just as liable as you, the direct infringer. But there absolutely must be a direct infringement in order to support a claim of indirect infringement. If you didn't infringe, then my encouragement doesn't mean anything. The browsing-as-reproduction infringement is what the court had to find in order to find the actual defendant liable. (The direct infringer doesn't have to actually be sued)
Roughly the same thing is how they got Napster, Grokster, etc. Not because of what they did, but because of their involvement in what their users did.
ISPs, however, are somewhat protected by the 17 USC 512 safe harbor. Basically this had been a concern back in the 90's, whether they'd be liable for what their users did, and there was mixed caselaw on the subject. If an ISP, which is really very broadly defined, qualifies for the safe harbor (which may involve taking some affirmative steps) then they're protected. Of course, the safe harbor imposes a duty on them to abide by 512 takedown notices and such.
Does US law allow for a defence that you didn't know the content of a web page before you saw it, so cannot be held liable for the offence of making an automatic copy
Again, the Intellectual Reserve case I quoted addresses this. US copyright law is strict liability law. It doesn't matter what you knew or should have known. If you engage in the proscribed activity, you're breaking the law, period. However, if you can show that you were not aware that you were infringing, and had no reason to believe you were infringing, and that there was no copyright notice attached, then you can reduce statutory damages down to $200 per work infringed. That's the best you can get. This stuff is covered in 17 USC 501(a), 504(c), and 401(d).
It just seems that this ruling could be ridiculously applied to ban the web in total! After all, every copyrighted web page probably doesn't come wit
Remember: as far as AllOfMP3 are concerned, they're not doing anything wrong.
Eh, I find that doubtful. They are in fact breaking the law (our courts will treat people who do business in or with the US, therefore taking advantage of our laws, as within our jurisdiction) and I doubt that they're really confused about that. I just think that they don't care, since they're relatively safe from danger.
If the "Russian Mafia" tag is correct (or "shady Russians" as you put it),
What, you really think they're fine, upstanding guys, who help old ladies cross the street, or something? I don't know if they're involved with organized crime, but they're certainly not on the level. Hence 'shady.'
wouldn't that make the evidence supplied be of dubious veracity? I don't think American courts are in the business of treating the word of drug-runners and arms dealers as being golden testimony.
Could be. But what it would be good for is a list of names so that RIAA knows who to go after. It's enough of a basis for a suit, and a suit against a customer offers opportunities to gather more evidence which could corroborate the information they got.
What makes you think there's only one party infringing? Allofmp3 is infringing, in that they're distributing to customers in America, and doing business with them. This exposes them to liability here, but the lack of assets in the US makes them pretty much impossible to sue effectively in the US. Of course, nothing is stopping RIAA from exerting whatever pressure they can in Russia, quite possibly in conjunction with the US Trade Representative, who is crazy influential.
In any case, the customers are also infringing, by infringing on the reproduction right within the US. This is because Allofmp3 isn't making a copy here; the user causes that to happen, and so bears that responsibility. The only two things helping them are their relative anonymity, so long as Allofmp3 doesn't expose them (which might happen, if they felt they needed to save themselves), and that RIAA would prefer to go after the head of the snake. That is, if they can shut down Allofmp3, the customers opportunities for infringements are limited too, and they only had to have one lawsuit. It's more efficient than going after the users on their own, though that might happen too.
Like I said, to import a phonorecord, the phonorecord itself must cross the border. But a phonorecord is defined as a material object. A vinyl record, a CD, an eight-track tape -- those can all be phonorecords. An Internet download cannot be.
But the material objects at either end of the download -- the computers, their RAM, their hard drives, etc. -- those can be. So, when you download, you create a new phonorecord at the receiving end. This is the act of reproduction, and it is infringing per 17 USC 501 and 106(1).
While I don't care for this result, the Intellectual Reserve case I linked to before does an excellent job of explaining this. This case dealt with people downloading (in order to view) a web page that had been put up unlawfully, but whether we're talking about a web page or an mp3, this analysis will come out the same:
The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement). See 17 U.S.C. 106.
"Copy" is defined in the Copyright Act as: "material objects . . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. 101. "A work is fixed' . . . when its . . . sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.
When a person [**10] browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by licence, such an act constitutes copyright infringement); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. Distrib., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer); see also Nimmer on Copyright 8.08(A)(1) (stating that the infringing act of copying may occur from "loading the copyrighted material . . . into the computer's random access memory (RAM)"). Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.
Slashdot Mirror
As TPB only point to something that points to something that points to chunks of something that may be copyrighted, there's no way any sane person can call this 'direct'. It is extremely indirect, if anything.
Yes, I know how it works, and I agree. That is indirect.
However, the earlier poster was wrong; contributory infringement is a form of indirect infringement. In fact, it would probably cover that situation quite nicely. The other forms of indirect infringement: vicarious infringement and inducement to infringe, also might apply, depending on the specific factual scenario.
Sweden might not have these kinds of laws. I don't know. But the US does, and TPB would easily have been shut down for illegal activity had it been in the US.
It is quite similar to Napster, in fact, which never directly infringed, but did provide pointers to users to one anothers' computers so that they could infringe. Napster was found liable for this indirect infringement.
Your problem is, you didn't closely read my post. I never said that TPB was a direct infringer, I said that contributory infringement is a kind of indirect infringement.
I hope that when the legal repercussions of that raid are settled, TPB moves back to Sweden where it will be protected against repeats due to the fallout of this affair. The raid itself was illegal, the minister of justice's involvement in the warrant was highly illegal and the execution of the raid was a massive abuse of power, complete with the covered cameras, 200 servers removed without warrant, and the refusal of the police to comment to the press on the many issues at hand.
Actually, we don't really know that. I don't know whether TPB has been operating legally or illegally, given the laws of Sweden, since I'm unfamiliar with those laws. I bet you're unfamiliar with those laws too. I wouldn't rely on TPB as a source of accurate information about those laws, as they are far from disinterested in this. What we really need is a Swedish copyright lawyer to discuss the subject.
TPB can ONLY be discussed in relation to swedish law, My comments were made in that context.
...
I don't think so. Remember, this whole thread has originated from the post where Anonymous Brave Guy said:
I think a lot of people here aren't looking at the bigger picture. Whether you like it or not, the vast majority of the international community in the western world does agree on some basic legal principles:
Helping someone to break a law is in itself illegal.
And that's where you responded, saying:
Contributory infringement has to be direct, not indirect. Pointing someone to a computer that has a chunk of a file is indirect. Giving them that chunk is direct.
Which, as I've already pointed out, is wrong in that contributory infringement is indirect, and is never direct.
I think the context of your original comments was pretty clear, especially since you didn't even mention TPB until you responded to me.
Really? They would be perfectly material here in the US. The following is from the Supreme Court opinion for Grokster.
Sure, the name might not be probative all on its own, but it is certainly a factor.
You actually confirmed my point ...
No, because you had conflated direct infringement and contributory infringement. In fact, contributory infringement is a type of indirect infringement.
The servers at TPB do NOT give anyone a chunk of the file. They are NOT distributing.
I know, and I know how torrents work. I agree that they are not directly infringing. But they are likely contributory infringers, and depending on what their site is like, they might be vicarious infringers. Whether they're also inducing infringement is difficult to say, both because I'm not aware of precisely what they've been doing, and because there's so little caselaw; things are still developing there.
I agree with you there; since the process is entirely automated, there is no knowledge, same as a telephone network carrying a conversation where two people are plotting a conspiracy.
However, when TPB gets a letter from a copyright holder, which has been known to happen, they're put on notice and have knowlege. This is precisely how things went down with Napster, you'll recall. And while Grokster took care to avoid being a contributory and vicarious infringer, they ended up being liable for inducement.
Of course, with these last couple of paragraphs, we've moved from a general discussion to a discussion of TPB specifically, and US law would not really apply to them.
I'm sorry, but pretty much everything in your post is wrong.
Contributory infringement has to be direct, not indirect.
No, contributory infringement is inherently indirect infringement, also known as secondary liability. Maybe you're getting confused by the fact that there must be an underlying direct infringement which is contributed to.
Napster, for example, was found liable for contributory infringement because they were aware of infringements on their system (having been expressly told about them by copyright holders) but nevertheless continued to materially assist the users who were directly infringers. All Napster did was to provide a technology and and index of links, remember.
They're not alone. It's actually not that uncommon to see linking result in liability.
Pointing someone to a computer that has a chunk of a file is indirect. Giving them that chunk is direct.
Also your example fails, because giving someone a file will not be contributory infringement, it will be direct infringement, in the form of distribution.
The difference is important - otherwise, your electical company, your landlord if you rent/your bank if you have a mortgage, the company that made your computer, the chair you sit your ass in to type, and the boss who pays your salary so yo can afford all the shiny toys, would all be guilty of contributing to infringement, since without them you wouldn't be able to infringe the copyright. Oh, and the government as well, since they regulate the telecom industry and provide the environment that allows you to do all these things.
No, for two reasons. First, the law differentiates between factual causes and proximate causes. For example, let's imagine that A negligently runs a red light and hits B. B can sue A, but he can't sue A's mother. A's mother is certainly in the chain of factual causation: if she hadn't had A, A wouldn't have hit B. But she is too far removed from the car crash for liability to stand.
Second, one of the elements of contributory infringement is knowledge of the infringement at the time of the contribution. It is incredibly unlikely that any of those entities will have the slightest idea what you're doing at the time when you download something unlawfully. Therefore they're off the hook.
MA
Since his website has a "screening process" that is a mere formality, it does not qualify for SCA protection.
/. is to correct misinformation.
Mm. As it happens, I recall another case with similar facts, involving a primary school student who created a website. The screen failed there too.
Seriously, the number of non-lawyers sounding off in the last three days has gotten on my nerves; there's a lot of misinformation on slashdot (surprise surprise) but it always seems to be worse when it involves the law...
I hear you. Practically all I ever do when I have time for
Seems unlikely.
Contributory infringement requires that Google know of infringing activity and materially contribute to it with that knowledge. But they don't really know all that much; do they know, when they give search results to a user, that the user is going to infringe? No, because they don't know that what they've pointed to in the search results is there legally. The mere capability of their search engine to be used for infringing purposes won't be held as sufficient by itself to impute knowledge to Google, if it has substantial lawful uses, which it does.
Vicarious infringement requires that Google have the right and ability to control the behavior of the direct infringer, and that they get a direct financial benefit from the infringer. This seems unlikely, as Google seems to make money simply by being a large and easy to use search engine, rather than one that is focused on infringing material. Still, there is a credible argument to be made here.
Inducement to infringe requires that Google provide its service with the intent of promoting its use to infringe as shown by clear expression or other affirmative steps to foster infringement. The facts to support the argument that this is what they're doing just aren't there. Google doesn't encourage people to use their search engine for unlawful activities.
Nevertheless, these theories fail, because Google has taken the necessary affirmative steps to protect itself with the 17 USC 512 safe harbor. Essentially, Google is protected so long as they respond to proper takedown notices, maintain a section 512 designated agent, etc. So long as they're within the protection of 512, it doesn't matter whether they'd otherwise be liable.
The DMCA has nothing to do with it. They are illegal in the US, because the US treats contributory infringement (i.e. knowingly helping someone infringe), vicarious infringement (i.e. profiting by another's infringement), and inducement (i.e. strongly encouraging someone to infringe in conjunction with assistance) as being punishable just as much as direct infringement. The idea of secondary liability is fairly common in our legal system.
Whether Sweden has anything like this, I have no idea.
Since european court has enough power to enforce member states to change their laws (its compareable to american superior courts on US of A level e.g. forbidding the State of Washington to open an airport named Washington Airport :-) or such... and I expect quite some americans to fall for this argument trap - look up Washington vs. DC), it is highly unlikely that anything overturns this rule within the next few years.
FYI, no courts in the US can compel legislative bodies to enact or repeal laws. That would interfere with the seperation of powers that is part of the heart of our system of government. Unconstitutional laws generally remain on the books, they're just unenforcable as a practical matter. Also, any court can find a law unconstitutional, whether it's a state or federal court, whether it's a trial or appellate court. The higher up the court, the more its opinion matters, but they can all do it. There's no federal superior court. There is one federal Supreme Court though, so perhaps that's what you meant.
Lastly, we here in the US generally call the polity in the northwest 'Washington state,' and call the district on the east coast 'DC.' Given how far apart they are, and meaning that can be inferred from context, confusion isn't that common. (And Washington state is about 185,000 square kilometers -- it has a lot of airports, named after the municipal areas they serve)
No, the first one, the one he made whilst working at HP, was the Apple I. The Apple II came later. This is why the number two is in the name, because two comes after one.
You might not have known this, but Apple often numbers their computers in this fashion. For example, there was not just the Apple I, and II, but also the III. The LC, LC II, and LC III. The Classic and Classic II. The Color Classic and Color Classic II. And several other examples. More if you allow for bigger jumps in numbering (e.g. Power Macintosh 8100, which was followed by the 8500).
Where the hell did you get your information from? Did you put it together from what you read on the back of cereal boxes?
Jobs and Woz were introduced by Bill Fernandez, a mutual friend. Jobs was still in high school at the time. Jobs never worked at HP. He went to college, had some odd jobs, went to India, worked at Atari for a little while (and would bring in Woz to give him a hand), and eventually they started Apple.
Jobs didn't design a thing about the Apple I. He certainly got to hear all about it -- they talked a lot -- but it was all Woz. Pretty much the same for the Apple II and Disk II controller, though he was taking some requests at that time (e.g. 'make a floppy drive work on the Apple II in time for the next trade show'). And that was largely it. Woz assisted on some other projects, and did some of his own things apart from Apple, but those are his three triumphs, and he basically did them single-handedly. Plus he wrote a lot of the key software as well, so the hardware was fine-tuned for running the software, and vice-versa. Those machines would not have been nearly as great as they were if more than one person had been making them.
I'll believe it when I see it.
it has generally been held up by the courts as meaning the entire bill of rights applies as much to state and local governments as to federal.
No it hasn't. For various reasons, the courts approach this on a right-by-right basis. They have not incorporated all of them (especially since we're really only talking about the first eight), and sometimes only have incorporated parts of them. It'd be accurate to say that most or nearly all of the guarantees in the Bill of Rights have been incorporated, but it's not accurate to say that the whole thing has been.
the SCOTUS has sided against the publisher assuming that sale is acceptance
... leading to conflicting court opinions ... which have not been resolved by the Supreme Court."
Do you have a cite for this? Remember, that last case you cited was not the Supreme Court, it was the District of Utah.
Yes. It also doesn't mention any SCOTUS ruling specifically covering the validity of EULAs.
That's because it says "The first-sale doctrine as it relates to computer software is an area of legal confusion
The Supreme Court hasn't discussed EULAs. In fact, it is astonishingly unlikely that they ever will, since it is a matter of state law, not federal law. State supreme courts are the final interpreters of state law, and their decisions on matters of state law are binding on the federal Supreme Court (which is only supreme in matters of federal law). There's also fifty state supreme courts, and they don't have to agree on anything.
Congress could step in and create a uniform law, but this seems pretty unlikely. And besides, I can't imagine that it would be anything but pro-EULA until we have a sea change in Congress.
But innocent people ARE still wrongly accused and convicted. The lucky ones are released a few years later. Some are pardoned after they are executed.
What about those criminals who everyone knows are guilty as hell, yet are let off because of a technicality?
The system is by no means perfect.
That's true. However, we're looking at a couple of different kinds of imperfection there. In the first case, the state is acting imperfectly in that they're going after the wrong guy. Also, the defense is acting imperfectly, in that they aren't managing to win. In the latter case, the fault is with the state again. There's no such thing as a technicality. If the police violated the Fourth Amendment or something, then it's quite intentional that the state lose the case; law enforcement has to protect us, but it can't run roughshod over us in the process, or else we're just replacing one danger with another. And let's remember that 'everyone knew' that the Earth was flat, and that there were witches who were in league with the devil. What 'everyone knows' isn't reliable, and isn't safe to be around.
The "do no harm" thing w.r.t a murder suspect would be "a bad thing" if the suspect was indeed the murderer, but the lawyer successfully argued his case and got him off, at least IMHO.
So if the prosecutor had no idea who was actually the murderer, randomly picked a name out of a hat, and only by sheer luck it was the correct one (not that he knew that), it would be a bad thing to defend the murderer?
I'm not seeing that. The murderer is a bad guy, but the prosecutor who doesn't have to prove his case is worse. Most of the time he not only will punish the innocent, but he will fail to punish the guilty. It's more important that he do his job right. It's safer for most of us, and it's more successful at doing what is intended.
Civil rights guarantees -- such as the means by which evidence can be gathered, or the right to be defended, or the right to a jury -- are all there to protect the innocent and limit punishment to those who are proven to be guilty. If a high standard and burden of proof are not required, then it is a certainty that justice will not be done.
Well, you said that this was a Supreme Court case. What you linked to, however, was a decision issued by a District Court. This means that the only precedential value it has is influential. No courts are bound by this decision.
Unfortunately, most courts that have had these cases, though not all, have been siding with enforcing EULAs. Courts aren't obligated to follow this case, and most of them don't, finding the ProCD line of cases (which are binding on some courts) to be correct.
You should probably carefully read through the Wikipedia article you linked to. It does point out that there is a split in the courts on this matter.
Got a cite for that?
I certainly don't see how there'd be conflict with defending a murder suspect. It's important to force the state to prove their case, lest innocent people be wrongly accused and punished for things they didn't do.
That's not a good summary at all.
The first sale doctrine is that the distribution right of copyright does not preclude sales, lending, etc. of a particular copy of a work that occur after the copyright holder has sold that copy. Note that first, it has been shrunk in recent years, at the behest of the music and computer industries such that it is now illegal to rent sound recordings or software, with some limited exceptions (e.g. console software, library lending).
To date, first sale has not precluded the possibility that the copyright holder would create a contract with buyers that limited subsequent sales. First sale only says that he doesn't have power over subsequent sales automatically as part of his copyright. EULAs try to exploit this limit on the scope of the first sale doctrine, and have had significant success in doing so. There have not been any serious assertions that the first sale doctrine precludes contracts such as EULAs.
There have been serious assertions that state contract law would, but this depends on the contract, and the state. In most jurisdictions, the pro-EULA side appears to be winning that battle. Since contract law is a state law matter, you'll never see something like a federal Supreme Court decision that settles the matter. And while federal courts might have to deal with the issue from time to time, they're bound to follow state law on the subject.
First sale is codified at 17 USC 109.
Section 117 deals with issues involving reproduction of computer software, but it is generally inapplicable because it too is subject to being undercut by EULAs. However, I don't really see how it is of any particular interest to us here.
Again, comparing with UK law is interesting, since transient copies are explicitly exempted from copyright infringement considerations (the copying must be essential to the operation of the machinery - but in the case of a web page or mp3 file, it clearly is).
We have something similar to that for computer software in 17 USC 117, but it's sufficiently weak that it hardly ever really comes into play. Instead, web browsing relies upon implied licenses from the conduct of the copyright holders that put the material online to make copies sufficient to view the material. Sometimes there are express licenses, but it's uncommon in my experience.
And in cases like Intellectual Reserve, where the copyright holder didn't put the material online and didn't want it put online, the license isn't there.
In effect, it gives a green light for litigants to pursue people who have even seen objectionable material on the Internet, without redistribution. That's got to be pure gold for the Scientologists. Hell - where does this place ISPs who operate web proxies?
That case was actually about copyrighted religious tracts being put online by someone who opposed the religious organization, so yes, I'm sure the Scientologists like it. While this could support an open season on people who see unlawfully distributed material online, that's not really what it's used for, however. I only put up an excerpt from the case, but basically what it was, was this:
The defendant, who knew that the material was not supposed to be on the Internet, linked to it from his web page. Other people, unrelated to the defendant had put the material online. People browsing the web could follow the defendant's link and see the offending pages. In the US we have not only direct infringement (e.g. the defendant infringes on a copyright personally) but several varieties of indirect infringement (e.g. the defendant is involved with someone else's direct infringement). So, for example, if I materially contribute or encourage you to infringe, and I know that you'd infringe at the time I did that, I am a contributory infringer, and just as liable as you, the direct infringer. But there absolutely must be a direct infringement in order to support a claim of indirect infringement. If you didn't infringe, then my encouragement doesn't mean anything. The browsing-as-reproduction infringement is what the court had to find in order to find the actual defendant liable. (The direct infringer doesn't have to actually be sued)
Roughly the same thing is how they got Napster, Grokster, etc. Not because of what they did, but because of their involvement in what their users did.
ISPs, however, are somewhat protected by the 17 USC 512 safe harbor. Basically this had been a concern back in the 90's, whether they'd be liable for what their users did, and there was mixed caselaw on the subject. If an ISP, which is really very broadly defined, qualifies for the safe harbor (which may involve taking some affirmative steps) then they're protected. Of course, the safe harbor imposes a duty on them to abide by 512 takedown notices and such.
Does US law allow for a defence that you didn't know the content of a web page before you saw it, so cannot be held liable for the offence of making an automatic copy
Again, the Intellectual Reserve case I quoted addresses this. US copyright law is strict liability law. It doesn't matter what you knew or should have known. If you engage in the proscribed activity, you're breaking the law, period. However, if you can show that you were not aware that you were infringing, and had no reason to believe you were infringing, and that there was no copyright notice attached, then you can reduce statutory damages down to $200 per work infringed. That's the best you can get. This stuff is covered in 17 USC 501(a), 504(c), and 401(d).
It just seems that this ruling could be ridiculously applied to ban the web in total! After all, every copyrighted web page probably doesn't come wit
Remember: as far as AllOfMP3 are concerned, they're not doing anything wrong.
Eh, I find that doubtful. They are in fact breaking the law (our courts will treat people who do business in or with the US, therefore taking advantage of our laws, as within our jurisdiction) and I doubt that they're really confused about that. I just think that they don't care, since they're relatively safe from danger.
If the "Russian Mafia" tag is correct (or "shady Russians" as you put it),
What, you really think they're fine, upstanding guys, who help old ladies cross the street, or something? I don't know if they're involved with organized crime, but they're certainly not on the level. Hence 'shady.'
wouldn't that make the evidence supplied be of dubious veracity? I don't think American courts are in the business of treating the word of drug-runners and arms dealers as being golden testimony.
Could be. But what it would be good for is a list of names so that RIAA knows who to go after. It's enough of a basis for a suit, and a suit against a customer offers opportunities to gather more evidence which could corroborate the information they got.
What makes you think there's only one party infringing? Allofmp3 is infringing, in that they're distributing to customers in America, and doing business with them. This exposes them to liability here, but the lack of assets in the US makes them pretty much impossible to sue effectively in the US. Of course, nothing is stopping RIAA from exerting whatever pressure they can in Russia, quite possibly in conjunction with the US Trade Representative, who is crazy influential.
In any case, the customers are also infringing, by infringing on the reproduction right within the US. This is because Allofmp3 isn't making a copy here; the user causes that to happen, and so bears that responsibility. The only two things helping them are their relative anonymity, so long as Allofmp3 doesn't expose them (which might happen, if they felt they needed to save themselves), and that RIAA would prefer to go after the head of the snake. That is, if they can shut down Allofmp3, the customers opportunities for infringements are limited too, and they only had to have one lawsuit. It's more efficient than going after the users on their own, though that might happen too.
Like I said, to import a phonorecord, the phonorecord itself must cross the border. But a phonorecord is defined as a material object. A vinyl record, a CD, an eight-track tape -- those can all be phonorecords. An Internet download cannot be.
But the material objects at either end of the download -- the computers, their RAM, their hard drives, etc. -- those can be. So, when you download, you create a new phonorecord at the receiving end. This is the act of reproduction, and it is infringing per 17 USC 501 and 106(1).
While I don't care for this result, the Intellectual Reserve case I linked to before does an excellent job of explaining this. This case dealt with people downloading (in order to view) a web page that had been put up unlawfully, but whether we're talking about a web page or an mp3, this analysis will come out the same: