Assuming both do well in their respective markets, the US patent holder garners revenue for use of the patent long after the EU patent holder does. What are EU innovators to do?
Leave the EU, that's what.
Aside from the right or wrong of IP, the EU seemingly wishes to address this long-term market value of a work and adjust to losing innovators overseas to the US. How to properly deal with that is another matter, but we must be careful to acknowledge all aspects of the issue.
However, that's all completely wrong.
There is no problem, nor should there be, with a citizen of the EU holding a copyright or patent in the US. He doesn't have to move.
Now, if we were having this discussion well over a century ago, when the US only granted these rights to Americans, then you might have something. But that's just not an issue, and hasn't been for a long time.
What actually happens, it turns out, is that the EU citizen would simply gain overseas revenue longer than domestic revenue. That's it.
Well, it says inventors -- if I created the wheel today, I'm hardly the inventor of it. I'm more a copyright guy than a patent guy, but AFAIK novelty is a constitutional requirement for patents.
All the inventor has to do is publish. That's it. The article didn't say anything about eliminating the prior art requirements.
No, but it's possible to see an interference where one party is both the first inventor, but turns out to have a statutory bar problem. So this bill would pose the problem of harming the public domain.
This bill gives inventors a real incentive to file immediately, and not try to submarine other companies.
I'd want to give it more thought, but my immediate suspicion is that submarining is less prevalent given the current term from filing, and that it could be reduced even further if we pinned it to invention (without lengthening the term, please).
No, not necessarily. Your invention isn't magically prior art -- it takes a little bit of work for it to be. You can see some of the conditions at 35 USC 102. Generally, it needs to be published, patented, or used, to be prior art.
But rest assured -- this bill will allow BigCompany to get a patent and keep you out, despite your having invented the widget before them. Right now, when there is a dispute about this sort of thing, the PTO has a process called an interference which determines who invented first. This would do away with all that. It's simple, but gets it wrong.
The central problem is that it's unconstitutional in that it no longer would award patents to the first person to actually invent something, but rather to the first person to file for a patent. The Constitution permits Congress to grant patents to inventors, not mere filers.
Additionally, this is probably more likely to harm the rare, but important small inventors, since it can take them a bit longer to muster the resources to file.
It also harms the public, since it ignores the decision of an inventor to not get a patent, and thus allow the invention to lapse into the public domain right away. If this passes, not only would the inventor have to decide not to seek protection, but so would any other johnny-come-lately.
First-to-file, as opposed to first-to-invent, is a stupid idea. As usual, it was pioneered abroad (much like a lot of the stupid copyright laws we've been seeing for the last few decades) and is being pushed on the US for no good reason other than to standardize on whatever everyone else is doing. That all the other kids are jumping off cliffs is no reason for us to do it too. Our laws should be based on good policy, without regard for what other countries do.
Isn't there a criminal side to this whole copyright infringement business these days? If so, when does the criminal come into play?
These days being all the days since 1897. Criminal infringement is not new. The relevant statutes are at 17 USC 506 and 18 USC 2319, and 2319B. But unless the federal government prosecutes you for this, which is not terribly common, but does happen, it isn't an issue. Many, many more people face civil suits than criminal suits.
Is it the judge who decides on the amounts in all instances? Is there ever a jury involved?
Usually copyright suits are bench trials with no jury. But, if you want a jury to decide the amount, you have the right to have one per the 7th Amendment.
Wasn't there a $200 figure mentioned earlier, when would that come in?
Only if you did not believe, and had no reason to believe, that you were infringing, does the minimum drop from $750 to $200 per work.
Does it matter if the act was willful or if the intent to infringe was willful? As in:
I willfully made a copy knowing it was a copyright violation to do so, versus I willfully made a copy, but I thought it was not a copytight violation to do so, versus, I did not willfully make the copy, but I made it anyway.
It sounds like only the first of those three would satisfy the willfulness standard. Infringement is willful if you infringe the copyright and knew or should have known that it infringed the copyright.
In order to avoid being found willful, you need to prove both that you did not know, and had no reason to know, that what you did was infringing. This requires a good faith belief, obviously.
Naw. You can be famous without copyrights. In fact, you're probably even more likely to be, since the work will become more widespread.
It's true -- no money is guaranteed. But whatever money there is, most of it will go to you, if you have the copyright. So it's still a financial issue. And besides -- copyrights don't ensure fame any more than they ensure money. So your logic is somewhat faulty anyhow.
Patents really have nothing to do with fame. Trademarks, however, do have a significant fame aspect to them, but they're really more about protecting customers than anything else.
I think it would be horrible if any artist could say what was to be done with his/her work for no better reason than that they created it.
Copyright, incidentally, is about money. Having a copyright provides a potential source of income, which hopefully will have provided an incentive for the artist to create the work in question, where otherwise he would not have. So it is all about commercial ventures.
If you would have created something anyway, then it's actually quite stupid to grant a copyright on it, as the artist didn't need the incentive. We generally can't tell on a case-by-case basis, but it's perfectly appropriate to make applying for and keeping copyrights a business matter, which artists would need to treat seriously, much like they do with their taxes, business structures (if any), etc.
Since in the situation I outlined, I would not have any rights to even make copies for myself much less authorize someone else to do so, I don't see how this can be so.
Fair enough.
I still don't see you saying that, indeed it doesn't matter what they intended, they made a copy, they had no permission from the copyright holder to do so and thus they are guilty.
Liable, not guilty. Civil suits deal with liability; criminal suits deal with guilt. And there are higher standards for criminal infringement; they're not strict liability.
Anyway, yes, it doesn't matter what they intended. If they undertake an infringing action, they're liable.
You have taught me something I was previously ignorant of though (I think) as I did not know that the statutory damages deal had minimum and maximum fines. If I read you right, would you care to enlighten us further?
The relevant statute is 17 USC 504.
For infringement, the statutory damages are within the range of $750 - $30,000 per work, as the court finds to be appropriate.
If the plaintiff can show that the infringement was willful (this does get into the infringer's mental state), then the maximum is $150,000 per work, again, as the court finds to be appropriate.
If the defendant can show that he did not know, and had no reason to know, that he infringed, the minimum is $200 per work, as the court finds appropriate.
Personally, my favorite is that everyone gets the same afterlife: listening to Moses teach the law. For good people, it's heaven, and for bad people, it's hell.;)
OK, back to my original scene. Instead of emailing te rich marks the offending documents, I place them on a web site with a disclaimer that only x,y, & z have a right to copy.
I send a link to them by email. A certain percentage of them click the link. Now the web server logs show infringement on their part?
Statements along those lines may or may not work. Given the overall course of action you'd be undertaking, I'd be surprised if a court didn't find that you had implicitly authorized the people you mailed to view the works, with all that entailed.
This is because you are essentially trying to run a scam, and courts will do everything they can to avoid having you benefit from it, even a little bit.
When do statutory damages become collectable? I believe the material on the page would have to be "recorded" with the copyright office. Is that the rigt word? (My brain does not want to work well yet this morning.) Are there any other requirements for sueing statutory damages?
You have to create a work. You have to register the work with the Copyright Office, which costs $30. There has to be an infringement. You have to file a complaint in federal court, which costs $250. You need to know how to do it correctly, and which court to file in, which probably means hiring a lawyer, if you can find one that's willing and able to participate.
The minimum damages awardable are $200 per work.
So it's likely you'd end up losing money. It's further likely that you'd end up getting sued yourself for trying to run the scam, and that angry judges would hold you in contempt if you tried it a second time.
and when you get there, it is not about vacations in Florida at all but is instead a web page that was put up unlawfully (that link is not one such to my knowledge though) then you will have broken the law? That doesn't seem right.
Yes, you will have broken the law. If you dislike this, I encourage you to write your Congressmen. Of course, there is a low likelihood of being sued for such, but since secondary liability requires a direct infringement, it's hardly unknown to see this sort of thing as the basis of a suit against a third party that helped the person looking at the website to infringe. This is basically what happened in Intellectual Reserve v. Utah Lighthouse Ministry.
As for your two scenarios, in both, there is infringement, but A was probably more along the lines of what I was talking about.
Of course, this runs the risk of making the event liable if they don't catch anyone. Part of the reason that Napster was taken down was that they could ban users.
Personally, I would suggest that the people running the event talk with a lawyer that practices copyright law and is licensed in the appropriate jurisdiction.
The important thing, I think, is to avoid liability. Personally I don't think that there is a real moral or ethical dimension to copyright, and I'd be careful of trying to find and follow one, if it might result in legal problems.
There is no limit, technically. The law is that you cannot, looking to a copyrighted source, reproduce the copyrighted portions of it, even in part.
It's not hard to see why courts would say this. If changing, or not reproducing any mere element would suffice, there'd be plenty of people that would change one word in a book, and print up copies with impunity.
The thing is, however, that you're only not allowed to use the copyrighted parts of works. So, for the musical West Side Story, the underlying plot -- which is from Romeo and Juliet -- can't be copyrighted. The songs, choreography, script, film version, etc. are all additions to that, however, and are copyrightable.
You're free to use West Side Story as the source for the plot of Romeo and Juliet, but not free to use the other parts.
In practice, courts have found infringement in cases with even very small amounts of use. For example, just a few notes taken from one song and used in another has resulted in liability.
Some courts have even found that there's no lower limit -- providing that what's used is copyrightable.
Note of course that where you don't draw from a copyrighted source, but independently create something, there's no infringement, no matter how identical it is. Though if you could have been aware of the prior work in such a situation, courts will usually find it too improbable to believe that you coincidentally came up with the same thing.
As for your example:
If each sharer provides one letter and its index in the final assembled file, where is the copyright violation being committed?
The person who puts together the 'final assembled file' has infringed, by making a copy of the copyrighted work, based upon it. All the people who helped are likely equally as liable, as contributory infringers, since they helped him do it, knowing what they were doing at the time.
Remember how I said that it wasn't a good idea to try to be clever? The infringement in your example is perfectly obvious, and no court is going to be stupid enough to not see it.
I think this ruling is just inviting more legislation to "clarify" the use of BitTorrent and similar technology as copyright violations.
No, not really. It's all pretty clear cut, if you take a look at the law.
I knew I would be, that's why I put in the terminal illness bit. If I know I am dying in two months, what do I care. (This is hypothetical all around.)
Well, they can still bring a claim against your estate, if it has any assets.
I set up a situation where someone could download a copyrighted work without intent to violate copyright.
Can you clear up a bit more what was meant and how the situation I set up differs.
Well, let's say you go to web site and read a web page that was put up unlawfully. In order to read it, you necessarily make a copy of it in your computer, and that's been held to be infringing.
However, let's say that you run a proxy in between the two machines (the server and the client) in that example. The proxy is making copies too, in order to pass the data along to the user. But you just set it up -- it's the user who triggers it. So liability would probably go to the user, who chose what work to copy with it, and who could therefore control its use in that instance.
The main difference is that if you set up an automatic process that can be used to copy stuff, that's not enough for direct liability. Only when someone does use it to copy stuff, is liability appropriate.
So if you're sending materials to other people's computers, taking advantage of the fact that their email is downloaded automatically, etc. then it's likely not attributable to them. They didn't directly cause the reproduction to occur.
Of course, this sort of rather odd situation is also a good one to use fair use in, since it's an equitable defense, and it seems very unfair to hold people liable when they were set up. It doesn't quite mesh with the traditional four factors, but then, there's no requirement that those be all that a court takes into consideration.
Heh. I guess you haven't seen some of my posts in favor of reforming copyright law, then.
Still, it's key to know what the law is. Both so that you don't run afoul of it, and so that you know how bad it is, and how important it is that we fix it.
If anyone would be liable in that scenario, it'd likely be you; you're the one making things happen. You're just trying to set up other people to take the fall.
Plus, even if they do end up with some liability, it'd likely be minimal enough, given the circumstances, that it wouldn't be worth going to court over.
But not because of your mental state; because a prima facie infringement suit requires a copyrighted work, and an unauthorized act of infringement.
The elements of an infringement action are: 1) A copyrighted work 2) Where the plaintiff has the relevant copyright (or can bring the suit, at least) 3) And where the defendant did something that was unauthorized by the relevant rightsholder, and which is infringing.
If the plaintiff can show all of these, he wins, unless the defendant can put up a successful defense, or can show that one of those elements above isn't properly met.
What the defendant thought is not on the list!
If it were, it would say something like 'the defendant negligently did something,' etc. In copyright, doing it is enough.
Well, you could raise an equitable argument against this. But in the context of file sharing, it's not going to work. You don't get to rely on equity unless you have clean hands.
On Napster the indices were centralized; under their control. Thus they were able to have knowledge and contribution sufficient for liability at the same time. And they had the right and power to control user accounts, whilst running ads.
That, combined with the fact that users hosted files and were direct infringers by both uploading and downloading, is what killed them.
Later P2P networks have decentralized indices, so the provider of the technology can't control how its used, or by whom.
Slashdot Mirror
Is it wrong to say this revenue is NOT being made in the EU? I don't think so. That is the point I was shooting for....
But what's your point? There's nothing bad about revenues differing in different markets.
Assuming both do well in their respective markets, the US patent holder garners revenue for use of the patent long after the EU patent holder does. What are EU innovators to do?
Leave the EU, that's what.
Aside from the right or wrong of IP, the EU seemingly wishes to address this long-term market value of a work and adjust to losing innovators overseas to the US. How to properly deal with that is another matter, but we must be careful to acknowledge all aspects of the issue.
However, that's all completely wrong.
There is no problem, nor should there be, with a citizen of the EU holding a copyright or patent in the US. He doesn't have to move.
Now, if we were having this discussion well over a century ago, when the US only granted these rights to Americans, then you might have something. But that's just not an issue, and hasn't been for a long time.
What actually happens, it turns out, is that the EU citizen would simply gain overseas revenue longer than domestic revenue. That's it.
It certainly doesn't say "the first inventors."
Well, it says inventors -- if I created the wheel today, I'm hardly the inventor of it. I'm more a copyright guy than a patent guy, but AFAIK novelty is a constitutional requirement for patents.
All the inventor has to do is publish. That's it. The article didn't say anything about eliminating the prior art requirements.
No, but it's possible to see an interference where one party is both the first inventor, but turns out to have a statutory bar problem. So this bill would pose the problem of harming the public domain.
This bill gives inventors a real incentive to file immediately, and not try to submarine other companies.
I'd want to give it more thought, but my immediate suspicion is that submarining is less prevalent given the current term from filing, and that it could be reduced even further if we pinned it to invention (without lengthening the term, please).
No, not necessarily. Your invention isn't magically prior art -- it takes a little bit of work for it to be. You can see some of the conditions at 35 USC 102. Generally, it needs to be published, patented, or used, to be prior art.
But rest assured -- this bill will allow BigCompany to get a patent and keep you out, despite your having invented the widget before them. Right now, when there is a dispute about this sort of thing, the PTO has a process called an interference which determines who invented first. This would do away with all that. It's simple, but gets it wrong.
The central problem is that it's unconstitutional in that it no longer would award patents to the first person to actually invent something, but rather to the first person to file for a patent. The Constitution permits Congress to grant patents to inventors, not mere filers.
Additionally, this is probably more likely to harm the rare, but important small inventors, since it can take them a bit longer to muster the resources to file.
It also harms the public, since it ignores the decision of an inventor to not get a patent, and thus allow the invention to lapse into the public domain right away. If this passes, not only would the inventor have to decide not to seek protection, but so would any other johnny-come-lately.
First-to-file, as opposed to first-to-invent, is a stupid idea. As usual, it was pioneered abroad (much like a lot of the stupid copyright laws we've been seeing for the last few decades) and is being pushed on the US for no good reason other than to standardize on whatever everyone else is doing. That all the other kids are jumping off cliffs is no reason for us to do it too. Our laws should be based on good policy, without regard for what other countries do.
Isn't there a criminal side to this whole copyright infringement business these days? If so, when does the criminal come into play?
These days being all the days since 1897. Criminal infringement is not new. The relevant statutes are at 17 USC 506 and 18 USC 2319, and 2319B. But unless the federal government prosecutes you for this, which is not terribly common, but does happen, it isn't an issue. Many, many more people face civil suits than criminal suits.
Is it the judge who decides on the amounts in all instances? Is there ever a jury involved?
Usually copyright suits are bench trials with no jury. But, if you want a jury to decide the amount, you have the right to have one per the 7th Amendment.
Wasn't there a $200 figure mentioned earlier, when would that come in?
Only if you did not believe, and had no reason to believe, that you were infringing, does the minimum drop from $750 to $200 per work.
Does it matter if the act was willful or if the intent to infringe was willful? As in:
I willfully made a copy knowing it was a copyright violation to do so, versus I willfully made a copy, but I thought it was not a copytight violation to do so, versus, I did not willfully make the copy, but I made it anyway.
It sounds like only the first of those three would satisfy the willfulness standard. Infringement is willful if you infringe the copyright and knew or should have known that it infringed the copyright.
In order to avoid being found willful, you need to prove both that you did not know, and had no reason to know, that what you did was infringing. This requires a good faith belief, obviously.
Naw. You can be famous without copyrights. In fact, you're probably even more likely to be, since the work will become more widespread.
It's true -- no money is guaranteed. But whatever money there is, most of it will go to you, if you have the copyright. So it's still a financial issue. And besides -- copyrights don't ensure fame any more than they ensure money. So your logic is somewhat faulty anyhow.
Patents really have nothing to do with fame. Trademarks, however, do have a significant fame aspect to them, but they're really more about protecting customers than anything else.
Not only am I not interested, but I think that the idea of moral rights is a bunch of crap. Copyright is utilitarian.
I think it would be horrible if any artist could say what was to be done with his/her work for no better reason than that they created it.
Copyright, incidentally, is about money. Having a copyright provides a potential source of income, which hopefully will have provided an incentive for the artist to create the work in question, where otherwise he would not have. So it is all about commercial ventures.
If you would have created something anyway, then it's actually quite stupid to grant a copyright on it, as the artist didn't need the incentive. We generally can't tell on a case-by-case basis, but it's perfectly appropriate to make applying for and keeping copyrights a business matter, which artists would need to treat seriously, much like they do with their taxes, business structures (if any), etc.
It's not for total amateurs.
Since in the situation I outlined, I would not have any rights to even make copies for myself much less authorize someone else to do so, I don't see how this can be so.
Fair enough.
I still don't see you saying that, indeed it doesn't matter what they intended, they made a copy, they had no permission from the copyright holder to do so and thus they are guilty.
Liable, not guilty. Civil suits deal with liability; criminal suits deal with guilt. And there are higher standards for criminal infringement; they're not strict liability.
Anyway, yes, it doesn't matter what they intended. If they undertake an infringing action, they're liable.
You have taught me something I was previously ignorant of though (I think) as I did not know that the statutory damages deal had minimum and maximum fines. If I read you right, would you care to enlighten us further?
The relevant statute is 17 USC 504.
For infringement, the statutory damages are within the range of $750 - $30,000 per work, as the court finds to be appropriate.
If the plaintiff can show that the infringement was willful (this does get into the infringer's mental state), then the maximum is $150,000 per work, again, as the court finds to be appropriate.
If the defendant can show that he did not know, and had no reason to know, that he infringed, the minimum is $200 per work, as the court finds appropriate.
Personally, my favorite is that everyone gets the same afterlife: listening to Moses teach the law. For good people, it's heaven, and for bad people, it's hell. ;)
You are correct that there is a difference between the access-control and copyright-protection-control.
But it doesn't matter all that much. The DMCA deals with both, in turn, at 17 USC 1201(a) and (b).
Little endian makes Baby Jesus cry.
OK, back to my original scene. Instead of emailing te rich marks the offending documents, I place them on a web site with a disclaimer that only x,y, & z have a right to copy.
I send a link to them by email. A certain percentage of them click the link. Now the web server logs show infringement on their part?
Statements along those lines may or may not work. Given the overall course of action you'd be undertaking, I'd be surprised if a court didn't find that you had implicitly authorized the people you mailed to view the works, with all that entailed.
This is because you are essentially trying to run a scam, and courts will do everything they can to avoid having you benefit from it, even a little bit.
When do statutory damages become collectable? I believe the material on the page would have to be "recorded" with the copyright office. Is that the rigt word? (My brain does not want to work well yet this morning.) Are there any other requirements for sueing statutory damages?
You have to create a work. You have to register the work with the Copyright Office, which costs $30. There has to be an infringement. You have to file a complaint in federal court, which costs $250. You need to know how to do it correctly, and which court to file in, which probably means hiring a lawyer, if you can find one that's willing and able to participate.
The minimum damages awardable are $200 per work.
So it's likely you'd end up losing money. It's further likely that you'd end up getting sued yourself for trying to run the scam, and that angry judges would hold you in contempt if you tried it a second time.
I really would not try it, if I were you.
So, if I tell you to visit this great link for info on vacations in Florida:
http://www.bahamasvacationguide.com/
and when you get there, it is not about vacations in Florida at all but is instead a web page that was put up unlawfully (that link is not one such to my knowledge though) then you will have broken the law? That doesn't seem right.
Yes, you will have broken the law. If you dislike this, I encourage you to write your Congressmen. Of course, there is a low likelihood of being sued for such, but since secondary liability requires a direct infringement, it's hardly unknown to see this sort of thing as the basis of a suit against a third party that helped the person looking at the website to infringe. This is basically what happened in Intellectual Reserve v. Utah Lighthouse Ministry.
As for your two scenarios, in both, there is infringement, but A was probably more along the lines of what I was talking about.
Of course, this runs the risk of making the event liable if they don't catch anyone. Part of the reason that Napster was taken down was that they could ban users.
Personally, I would suggest that the people running the event talk with a lawyer that practices copyright law and is licensed in the appropriate jurisdiction.
The important thing, I think, is to avoid liability. Personally I don't think that there is a real moral or ethical dimension to copyright, and I'd be careful of trying to find and follow one, if it might result in legal problems.
To what limit?
There is no limit, technically. The law is that you cannot, looking to a copyrighted source, reproduce the copyrighted portions of it, even in part.
It's not hard to see why courts would say this. If changing, or not reproducing any mere element would suffice, there'd be plenty of people that would change one word in a book, and print up copies with impunity.
The thing is, however, that you're only not allowed to use the copyrighted parts of works. So, for the musical West Side Story, the underlying plot -- which is from Romeo and Juliet -- can't be copyrighted. The songs, choreography, script, film version, etc. are all additions to that, however, and are copyrightable.
You're free to use West Side Story as the source for the plot of Romeo and Juliet, but not free to use the other parts.
In practice, courts have found infringement in cases with even very small amounts of use. For example, just a few notes taken from one song and used in another has resulted in liability.
Some courts have even found that there's no lower limit -- providing that what's used is copyrightable.
Note of course that where you don't draw from a copyrighted source, but independently create something, there's no infringement, no matter how identical it is. Though if you could have been aware of the prior work in such a situation, courts will usually find it too improbable to believe that you coincidentally came up with the same thing.
As for your example:
If each sharer provides one letter and its index in the final assembled file, where is the copyright violation being committed?
The person who puts together the 'final assembled file' has infringed, by making a copy of the copyrighted work, based upon it. All the people who helped are likely equally as liable, as contributory infringers, since they helped him do it, knowing what they were doing at the time.
Remember how I said that it wasn't a good idea to try to be clever? The infringement in your example is perfectly obvious, and no court is going to be stupid enough to not see it.
I think this ruling is just inviting more legislation to "clarify" the use of BitTorrent and similar technology as copyright violations.
No, not really. It's all pretty clear cut, if you take a look at the law.
I knew I would be, that's why I put in the terminal illness bit. If I know I am dying in two months, what do I care. (This is hypothetical all around.)
Well, they can still bring a claim against your estate, if it has any assets.
I set up a situation where someone could download a copyrighted work without intent to violate copyright.
Can you clear up a bit more what was meant and how the situation I set up differs.
Well, let's say you go to web site and read a web page that was put up unlawfully. In order to read it, you necessarily make a copy of it in your computer, and that's been held to be infringing.
However, let's say that you run a proxy in between the two machines (the server and the client) in that example. The proxy is making copies too, in order to pass the data along to the user. But you just set it up -- it's the user who triggers it. So liability would probably go to the user, who chose what work to copy with it, and who could therefore control its use in that instance.
The main difference is that if you set up an automatic process that can be used to copy stuff, that's not enough for direct liability. Only when someone does use it to copy stuff, is liability appropriate.
So if you're sending materials to other people's computers, taking advantage of the fact that their email is downloaded automatically, etc. then it's likely not attributable to them. They didn't directly cause the reproduction to occur.
Of course, this sort of rather odd situation is also a good one to use fair use in, since it's an equitable defense, and it seems very unfair to hold people liable when they were set up. It doesn't quite mesh with the traditional four factors, but then, there's no requirement that those be all that a court takes into consideration.
Heh. I guess you haven't seen some of my posts in favor of reforming copyright law, then.
Still, it's key to know what the law is. Both so that you don't run afoul of it, and so that you know how bad it is, and how important it is that we fix it.
If anyone would be liable in that scenario, it'd likely be you; you're the one making things happen. You're just trying to set up other people to take the fall.
Plus, even if they do end up with some liability, it'd likely be minimal enough, given the circumstances, that it wouldn't be worth going to court over.
You're not.
But not because of your mental state; because a prima facie infringement suit requires a copyrighted work, and an unauthorized act of infringement.
The elements of an infringement action are:
1) A copyrighted work
2) Where the plaintiff has the relevant copyright (or can bring the suit, at least)
3) And where the defendant did something that was unauthorized by the relevant rightsholder, and which is infringing.
If the plaintiff can show all of these, he wins, unless the defendant can put up a successful defense, or can show that one of those elements above isn't properly met.
What the defendant thought is not on the list!
If it were, it would say something like 'the defendant negligently did something,' etc. In copyright, doing it is enough.
Well, you could raise an equitable argument against this. But in the context of file sharing, it's not going to work. You don't get to rely on equity unless you have clean hands.
I tip my hat to you, sir. It's so rare to see people citing the actual law around here. Most people just make crap up.
Lucky them, then, since it doesn't make a real difference.
No it did not.
On Napster the indices were centralized; under their control. Thus they were able to have knowledge and contribution sufficient for liability at the same time. And they had the right and power to control user accounts, whilst running ads.
That, combined with the fact that users hosted files and were direct infringers by both uploading and downloading, is what killed them.
Later P2P networks have decentralized indices, so the provider of the technology can't control how its used, or by whom.