Real Copyright Law And File Sharing Copyright Law

from the what-are-the-differences... dept

Fri, May 14th 2010 9:44am — Mike Masnick

We already wrote about the Limewire decision, which didn't seem particularly surprising at all, given that LimeWire was basically doing the exact same things as Grokster. However, some people are noticing a few problematic parts to the ruling. While these parts alone certainly won't change the ruling, it's still worth noting what the judge said and questioning whether or not they're proper. As Eric Goldman notes, he tells his students that when it comes to copyright law there's normal copyright law, and then there's "P2P file sharing" copyright law "and it's a mistake to think those two legal doctrines are closely related."

Judges don't like file sharing systems, and even if they have to twist the law to reach the conclusion they want, they'll do so to shut such sites down. It's happened over and over and over again. Goldman notes that LimeWire got in trouble for its advertising efforts -- even though none of those advertising efforts specifically suggested people infringe. Instead, because it advertised itself as a competitor to other file sharing programs that were used for unauthorized file sharing, the court said that's the same as inducing infringement. That seems like a dangerous finding. Just because programs may be targeting the same audiences, doesn't mean that they're inducing infringement. Yes, there were other factors that resulted in the finding of inducement, but using the ads targeting Napster/Grokster users seems questionable.

The second big problem is that the court says part of the reason it found inducement was because LimeWire didn't put in place filters. But that would mean the court's interpretation of the DMCA means that the law requires user-generated websites to install filters. The law says no such thing.

Goldman also highlights that the court found the CEO of LimeWire personally liable for infringement, which seems to go against the whole concept of a limited liability corporation structure. We've seen previous lawsuits on such things go after execs and investors personally, but usually those get thrown out. In this case, the court didn't seem to have a problem with applying the claims to the guy personally.

Of course, there are plenty of other reasons why the court found the way it did, but it's at least a little worrisome to see the court do these things within the overall ruling.

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Filed Under: copyright, file sharing

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NAMELESS ONE, 14 May 2010 @ 9:48am

judges dont like to share
would be interesting to see a study of how much charity per capita judges and lawyers do compared to the rest of society
as in WHO most gives in society

and it aint actors and lawyers and judges let me tell ya
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Ryan, 14 May 2010 @ 9:52am

Re: judges dont like to share
I think infinitely more important that how much a person helps other people (much less how much they give to charity, which may or may not really be the same thing) is how little they screw over other people.
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Anonymous Coward, 14 May 2010 @ 9:57am

Mr. Goldman is getting "drunk on his own wine". Seriously, "copyright law" and "P2P copyright law"? He spends a good deal of time talking about third party liability in the context of P2P, and yet fails to mention the rather important point that the very same liability applies in the world he seems to think is just your ordinary, run-of-the-mill "copyright law".
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Ima Fish (profile), 14 May 2010 @ 10:02am

There's always been two versions of IP law. One for the status quo and one for everyone else.

The status quo such as Viacom is allowed fair use with full rights to parody, satire, and ridicule trademarks, etc. But the small time filmmaker is not.

Heck, Murdock is always talking out his mouth and ass. He argues against "theft" while "stealing" from anyone he wants.

Copyright no longer has anything to do with protecting works of art/music/literature and everything to do with ensuring the profits continue to flow from their government granted monopolies. It's not about protecting the works, it's about protecting and enlarging the monopolies.
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Ima Fish (profile), 14 May 2010 @ 10:03am

Re:
"the very same liability applies in the world he seems to think is just your ordinary, run-of-the-mill 'copyright law'"

Fine, point to where the inducement standard is found anywhere in any copyright statute? I won't be holding my breath.
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:Lobo Santo (profile), 14 May 2010 @ 10:04am

Re: Re: judges dont like to share
Perhaps, what is the balance of there screwed/helped people numbers? Or perhaps a ratio would be better...
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Anonymous Coward, 14 May 2010 @ 10:07am

Re:
and the same thing has held for this limited liability nonsense. It mostly applies to big corporations more than it applies to smaller corporations.
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Hulser (profile), 14 May 2010 @ 10:08am

Internal e-mails
Yes, there were other factors that resulted in the finding of inducement, but using the ads targeting Napster/Grokster users seems questionable.

Hmmm, based on what I read, I got the impression that the inducement charge came mostly from internal LimeWire e-mails which detailed a grand plan to convert people from known copyrighted material to some paid product from LimeWire.

But that would mean the court's interpretation of the DMCA means that the law requires user-generated websites to install filters. The law says no such thing.

I don't think this changes the main point that the law doesn't require filtering, but the additional factor here is that LimeWire already implemented filtering of other content (porn), so apparently the logic was "You already had filters in place; you should have been able to add copyrighted material to the filter". No, that doesn't make any sense, but if you're a judge trying to retrofit the law to your ideas, it's something that can have the appearance of sense.
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Ima Fish (profile), 14 May 2010 @ 10:11am

Re: Re:
Totally!
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NAMELESS ONE, 14 May 2010 @ 10:39am

@2
how is not charity helping
you seem ot be trying to distort the reality that if i have a monthly income of say 1000$ and gvie say on avg 10$ a month in charity
that is 1 percent per capita

while a judge who society pays nicely for supposedly helping society which in htis case isnt, may give the same amount and ya know what its like .001 percent thus showing he only does it not for the charity of giving and helping BUT just for public relations

think actors
you i and everyone gives one 10million in movie sales then that actor turns round and gives 10000$ away
10,000,000 , 10,000
one one thousandth of the income is hardly being helpful and charitable its more like we should cut back what we pay people so MORE OF US that do give to help can.
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NAMELESS ONE, 14 May 2010 @ 10:40am

OH and dont forget
warner brothers CEO son got caught using bit torrent got a talking too and that was it.

maybe daddy should have made him publically give his allowance away for ever to many charities

and took away his puter
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Anonymous Coward, 14 May 2010 @ 10:54am

Re: Re:
Third party liability is a concept that was developed long ago by the federal courts and incorporated into their copyright jurisprudence. The very same can be said of fair use.

Yes, Congress has provided statutory approval to then existing judicial interpretations of the law, and if at any time it so chooses it is free to amend the statute to specifically exclude liability for inducement.

Of course, I recommend you do not hold your breath waiting for this to happen because Congress for many, many years has looked approvingly upon these judicial interpretations. Much is made about a piece of proposed legislation to specifically add inducement to the copyright statutes. Those efforts were rendered moot by Grokster, and congressional "silence" is and has historically been tacit approval of such interpretations.

BTW, prior to the Copyright Act of 1976 fair use was not explicitly set forth in the statutes. By your logic infringements prior to January 1, 1978 (when the new law entered into effect) would not have been able to claim safe harbor under fair use.
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lux (profile), 14 May 2010 @ 10:56am

wtf is NAMELESS ONE talking about.
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Karl (profile), 14 May 2010 @ 11:28am

Re: Re: Re:
Third party liability is a concept that was developed long ago by the federal courts and incorporated into their copyright jurisprudence. The very same can be said of fair use.

Copyrights were much, much different prior to 1976 (for example, you had to apply for them). "Fair Use" was not relevant before the law changed.

Fair use is defined by the Copyright Act of 1976, the Sony Betamax case, and (possibly) the exceptions to the DMCA.

I have never heard of "third party liability" for copyright infringement prior to the Grokster case. It certainly is not part of Title 17. Can you point me to some examples?
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C.T., 14 May 2010 @ 11:43am

Re: Re: Re: Re:
Secondary liability in copyright cases has been around for a long long time, predating the 1976 Copyright Act by decades. I know that one of the most heavily sighted cases for vicarious infringement is from the late-50s or early-60s... Shapiro v. HL Green (2nd Circuit). Even the Sony Betamax case, which you reference in your post, involved the application of secondary liability in a copyright claim. In fact, the inducement standard was first proffered in the Betamax case.
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Anonymous Coward, 14 May 2010 @ 12:03pm

Re: Re: Re: Re:
The basic concept underlying fair use traces its roots back to at least as early as England's Statute of Anne of 1709.
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Fushta, 14 May 2010 @ 12:09pm

Re:
"wtf is NAMELESS ONE talking about."
dont' stop. just keep scrolling down.
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Anonymous Coward, 14 May 2010 @ 12:28pm

perhaps the university that allows mr goldman to teach might want to consider letting him go, as he appears to be lying to his students, teaching an agenda rather than the truth. he is entitled to an opinion, but he shouldnt be polluting the minds of his students with his nonsense.
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BigKeithO (profile), 14 May 2010 @ 12:47pm

Re:
I always wonder the same thing...
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Anonymous Coward, 14 May 2010 @ 1:42pm

Both ways?
So to the extent that this vaunted "third party liability" nonsense is even based in actual law at all, does it work both ways? Like, if a service provider can be found liable to an "IP" holder for not taking something down on grounds that it should have filtered first or whatever, can it also be found liable to the user for not challenging obviously bogus notices prior to removing stuff? Or for identifying the wrong user? Or the wrong files? Is there an "inducement" charge for extortion?

It just seems to me that pretending that providers are liable actually prevents a real decision one way or the other on what infringes and what doesn't, which should be decided by courts, case-by-case, with full and fair arguments. The way things stand now seems explicitly designed to, in practice, keep DMCA cases from ever actually going to court with the real parties involved. If providers are compelled by force to remove on notice, then there's no need for the copyright holders to continue pursuing the truly responsible party, and no way for that person to challenge the accusation--or, indeed, the DMCA itself. There are ways to get out of such a tyrannical mess, of course, and both involve getting rid of the notice-removal nonsense entirely.

It's a simple matter of making a decision either way: third parties are not liable, but can point holders to the users who are; or third parties are liable, but to both holders and users equally, AND users can be held liable to providers for putting them in that position if the infringement is found to be real. This way someone ends up having to argue in front of a judge no matter what, and the DMCA can stand or fall on its constitutional merits.

Leaving it undefined but constantly looming, though, creates a horrible and unjust imbalance and fails to establish firm boundaries.

Or the short version: somebody draw a god-damned line already!
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Anonymous Coward, 14 May 2010 @ 1:43pm

Re:
Yeah, how dare he provide facts to back up his opinion. We should all follow TAM's continued examples and just spout nonsense without any basis in fact.
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Anonymous Coward, 14 May 2010 @ 3:00pm

Re: Re:
hi mike. baiting as always. classic.
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Anonymous Coward, 14 May 2010 @ 6:03pm

Re: Re: Re:
You love Techdirt.
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Anonymous Coward, 14 May 2010 @ 11:14pm

Re: Re: Re:
Hi TAM. How is the tinfoil industry doing?
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Anonymous Coward, 15 May 2010 @ 1:17pm

Re: Both ways?
'Like, if a service provider can be found liable to an "IP" holder for not taking something down on grounds that it should have filtered first or whatever, can it also be found liable to the user for not challenging obviously bogus notices prior to removing stuff?' - first off, the service provider is no liable up front. they can become liable if they are not taking action within the limits of the law. they are not there to challenge, that is up to the user / account holder. obviously, anonymous postings are pretty much a slam dunk, they have no way to communicate to their user and thus, things are taken down. there is no third party liability to start with, it is created only by ignoring legally defined notices. you have to remember that grokster or limewire or tpb are not innocent service providers, they are active participants who profit from widespread copyright violation. they arent third parties, the are co-conspirators. they are intentionally and willingly part of the process, and there is now a supreme court ruling on that in the us.
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