Court Finds Megaupload Could Be Guilty Of Direct Infringement In Perfect 10 Case
from the say-what-now? dept
Perfect 10 is probably a lot more famous for filing copyright infringement lawsuits than publishing any sort of images. And it seems to always lose. In the process, the company has helped set a variety of useful precedents, mainly in the area of fair use. Yet the company forges on, suing every third party it can find. Last year, we detailed RapidShare's fascinating response to Perfect 10, which finally lays out in great detail some of the company's practices -- such as allegations that it sends faulty or otherwise questionable takedown notices in the hopes that they're not taken down so the company can sue.Earlier this year, we noted that its latest target was the well known file storage service, MegaUpload. Given the similarity with this case to many other Perfect 10 cases, we had hoped that the judge would make quick work of dismissing it. Tragically, that's not what happened. Embedded below is the unfortunate ruling from Judge Irma Gonzalez, who mostly ruled against MegaUpload in its motion to dismiss the lawsuit. You can read the whole thing, but the truly scary part for me is where the court says MegaUpload may be guilty of direct infringement.
This is crazy. Direct infringement charges are used against the actual party doing the infringing. Most service providers don't have to deal with that, but instead the focus is on third party liability, things like contributory infringement, vicarious infringement or inducement. Here, however, the judge actually says that MegaUpload is involved enough that it could be found guilty of direct infringement:
Drawing all reasonable inferences in Perfect 10's favor, Megaupload serves as more than a passive conduit, and more than a mere "file storage" company: it has created distinct websites, presumably in an effort to streamline users' access to different types of media (e.g., megaporn.com, megavideo.com)... it encourages and, in some cases pays, its users to upload vast amounts of popular media through its Rewards Programs.... it disseminates URLs for various files throughout the internet... it provides payouts to affiliate websites who maintain a catalogue of all available files... and last, at a minimum, it is plausibly aware of the ongoing rampant infringement taking place on its websites. Taken together, Perfect 10 has adequately alleged Megaupload has engaged in volitional conduct sufficient to hold it liable for direct infringement....This still doesn't make any sense. Everything described seems relevant to indirect third party liability. None of it seems to involve direct infringement. Honestly, I'm just confused how the court made the leap here. While this was just to deny the motion to dismiss, this might not bode well for Megaupload... and Perfect 10 may finally score a big legal win.
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Filed Under: copyright, direct infringement
Companies: megaupload, perfect 10
Reader Comments
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lol. Yes, what a tragedy.
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MegaUpload....
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Typo?
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Irma Gonzalez
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Re: MegaUpload....
I can certainly see why a judge wouldn't dismiss and actually want to hear the trial.
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Re: Irma Gonzalez
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Megaupload IS "more than a passive conduit".
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Megaupload doesn't just allow you to upload a file and point others to it (as a straight file host might) but they are also providing a streamlined user interface, and are aggregating the content (similar in manner to YouTube). There is a point where this type of service has to be aware of the content they are putting up, and realize that it is in violation.
At the point of aggregation, they could become a first party infringer.
Mike, I am surprised you can't see this.
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Re: Megaupload IS "more than a passive conduit".
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What point would that be?
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Re: MegaUpload....
It will probably come down to how it is sorted (manually by users, manually by employee's, automated by file type / meta data vs something like YouTube pattern recognition).
Too bad that providing a product that is useful to people may be their downfall.
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Re: Re: Irma Gonzalez
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Re: Megaupload IS "more than a passive conduit".
Yet Viacom seemed to think that YouTube should be able to tell.
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Technologically clueless people agree with me.
Freetards agree with you.
Technically astute people agree with you.
Now, who do you really think will control the situation?
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Re: Re:
No wonder you prefer not to provide any potentially identifying information.
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This was a summary judgment motion
So, remember this is not saying MegaUpload is even likely to be liable for direct infringement. It is merely saying that when every possible inference is made against MegaUpload that what the other side has alleged is enough that it might possibly constitute direct infringement.
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Re: Re: Irma Gonzalez
He might have a point since Judge Beryll Howell allowed the bittorrent lawsuits.
It was also Judge Nagle Hunt(?) that allowed the first domain seizures.
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Re: Re: Irma Gonzalez
I thought the commenter was a feminist complimenting women on their fine judicial skills. How's that sexist?
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And that still doesn't address the issue of magically knowing what is infringing and what isn't, since a judge hasn't weighed in on any of it.
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Re: Re: Re: Irma Gonzalez
He? How do you know the commenter was male? You're a sexist bigot.
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Re: This was a summary judgment motion
Either way, the opinion doesn't describe anything that amounts to copying, distributing, etc. (i.e. the exclusive rights innumerated in 17 USC 106). So, regardless of whether there's volitional conduct, it's not conduct amounting to direct infringement (judging by the snippet).
Then again, the opinion makes it sound like the defendant only argued there was insufficient "volitional conduct," so maybe acts of copying were alleged and the only question was "volition."
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Re:
Kind of like the duck hunter who shot another hunter using a duck call, huh? Yeah, real genius there.
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Says the troll posting with a fake name.
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Re: Typo?
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Re: Re: Megaupload IS "more than a passive conduit".
You guys need to get your head out of the sand. Your willful blindness approach is an epic fail every time.
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No, you become a direct infringer at the point of reproduction, preparation of derivative works, distribution of copies or phonorecords, publicly performing the work, displaying the work publicly, or performing the work through digital audio transmission.
Maybe some of these things were alleged in the complaint and the opinion just focuses on "volitional conduct" because that was the only argument megaupload raised, but "volitional conduct" alone is not enough if it doesn't fit one of those enumerated rights.
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Yeah, you're failing miserably. I'm sure that anyone that went through the Holocaust would love to hear how you're being persecuted in the same way. You're not doing anything for your cause by equating it with what was one of the most horrible acts in human history. This is why no one takes you seriously.
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Re: Re: Re: Re:
... and no, an anonymous user cannot grant you a license over clearly copyrighted material. It's not magic, it's pretty much common sense.
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Re: Re: Re: Megaupload IS "more than a passive conduit".
But by whoever put it there, not necessarily the site in question. Big difference.
You guys need to get your head out of the sand. Your willful blindness approach is an epic fail every time.
People really need to get their out of the sand and realize what the copyright industry is trying to do. Otherwise, their blindness will result in an epic fail.
FTFY
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It is nowhere near that simple.
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Re: Re: Re: Re: Irma Gonzalez
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Re: Re: Re: Irma Gonzalez
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So far, this is the only case that has ruled that such things constitute direct infringement. For example, the Supreme Court did not rule that Napster, Grokster, etc. were directly infringing, even though they considered that option.
If this case doesn't simply get settled, then either the judge will rule for contributory, vicarious, or inducing infringement, or it will be overturned on appeal. There's simply too much case law that contradicts a ruling of direct infringement.
Of course, any of those things mean you can be fined the statutory rates, so it's not much better for Megaupload.
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Re: Re: Re:
But the actions discussed specifically in the opinion do not, I believe, amount to direct infringement. Perhaps there is an inference that Megaupload is making reproductions (I do think that's probably reasonable), but the opinion is not clear on that point.
Your post glosses over the distinctions between direct, contributory, and vicarious infringement, which is the main thrust of the article.
Also, "copywritten" is not a word. At least, not a word related to copyright.
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Re: Re: Re:
Without looking at the complaint, I'm not sure if that's true.
It sounds like "volitional conduct" was the only matter argued, not whether MegaUpload was engaging in acts that would constitute direct infringement if "volitional."
At the very least, you could uphold this ruling on the grounds that it is a reasonable inference that, from the facts alleged, MegaUpload engaged in conduct constituting direct infringement (e.g. made at least one copy of a work in the course of its operations).
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...Sorry, it's not a ruling on the case, so I shouldn't have used that phrase. It's simply a ruling on a motion to dismiss, meaning it's not part of case law. Apologies.
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Re: Re: Re: Re: Irma Gonzalez
Two points. First, it is only considered "sexist" if it disparages someone based on their gender. The OP didn't do that. Second, the OP didn't refer to all "women" as a group, only the ones who are judges and making rulings such as this one.
Epic fail for you on both points trying to play the sexist card.
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What? Rulings on motions to dismiss certainly are considered "case law."
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Re: Re: Re: Re: Re: Irma Gonzalez
Says who?
Also, lumping a large and diverse group of people under the heading "women judges" is no better than lumping a large and diverse group of people under the heading "women."
Lol at you with your "epic fail" post.
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Not that new. It was considered back when section 230 of the DMCA was written. Of course, people who don't like section 230 have been trying to get rid of it ever since then with case after case that they try to claim is somehow new and different.
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Anyway, nothing in any of your posts discusses the difference between encouraging others to infringe and profiting from infringement, on the one hand, and actually performing acts of infringement, on the other.
Since that difference is the main thrust of Mike's article, I'd say you are glossing over the differences.
Also, there's no reason for the court to issue an opinion denying the MTD on direct infringement just to hear expert testimony. The difference between direct infringement and contributory/vicarious is not really a "minute difference" and you'll only get to expert testimony on the issue if the plaintiff at least *alleges* that some act of direct infringement ocurred.
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Re: Re: Re: Re: Re: Re: Irma Gonzalez
I think most people recognize that as the general usage of the term. But I suppose that by *your* rules, any mention of gender is an excuse to play the sexist card. But then, by your rules, guess what that makes you: Sexist! You fail miserably both ways.
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Re: Re: Re: Re: Re: Re: Re: Irma Gonzalez
"Sexism, also known as gender discrimination or sex discrimination, is the application of the belief or attitude that there are characteristics implicit to one's gender that indirectly affect one's abilities in unrelated areas." http://en.wikipedia.org/wiki/Sexism
"1: prejudice or discrimination based on sex; especially : discrimination against women
2: behavior, conditions, or attitudes that foster stereotypes of social roles based on sex" http://www.merriam-webster.com/dictionary/sexism
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Re: Re: MegaUpload....
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Re: Megaupload IS "more than a passive conduit".
In almost every other corner of the law, helping the criminals find each other is called being an accomplice. If you run a directory of hitmen and help people find the right one to match their needs, it's not "free speech". Nope. It's called being an accomplice.
If you create a directory of cars and help people find the one they want to steal, that's called being an accomplice. It's not free speech. It's not "innovation". It's a crime.
Yet, people here continue to denigrate the hard work of people like Martin Luther King and Peter Zenger just to try to dodge their inevitable guilt.
Sigh. At moments like this, I almost feel like the $150,000 penalty is actually fair.
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Re: Re:
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Re: Re: Megaupload IS "more than a passive conduit".
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The phrase "direct infringement" was used by the judge herself to refer to acts committed by third parties using Megaupload. She ruled that if Megaupload's conduct is "volitional," it can be directly infringing.
What's interesting is that she quotes Arista v. Usenet and Capitol v. MP3Tunes. The Arista case ruled (from Playboy v. Hardenburgh) that the service provider must have some sort of active screening process in order to "transform Defendants from passive providers of a space in which infringing activities happened to occur to active participants in the process of copyright infringement." A screening process was not even alleged in this case.
Capitol v. MP3Tunes is still ongoing, to my knowledge; the latest court document I could find was the ruling on jurisdiction and venue from August 2009. Neither that ruling, nor any other I've come across, suggest that MP3Tunes could possibly be guilty of direct infringement. (Likely she has access to a document that I don't.)
What's also interesting is that she dismisses the "vicarious liability" claim, ruling (from Napster) that a service provider must operate in a "closed system" for vicarious liability to attach.
This will definitely be an interesting one to watch, for the legal wonks.
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It might be relevant in another motion to dismiss. But if another case cited this one as proof that volitional conduct alone is sufficient to show a ruling of direct infringement, I seriously doubt any judge would go for it.
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It's pretty hard for them to deny.
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The folks here will jump through any hoops to believe that what these sites are doing is "innovation" when, as far as I can tell, the only innovation is cutting the creator out of the loop.
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e.g. made at least one copy of a work in the course of its operations
...was not even alleged, to my knowledge. That is, nobody at Megaupload was even alleged to have directly placed any material on their own servers. She seems to have ruled that "volition" alone is sufficient for direct infringement.
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Re: Re: Re: Re: Re: Irma Gonzalez
We fought for equal rights, and if you don't do this then you are setting women back thousands of years!!!1!
The opposite school of thought (I've seen many grandmothers with this, and a few of the younger generation in the south):
Women should be in the home or doing a small number of jobs designated 'for women' (nurse, teacher, secretary). If you're doing anything else then you are upsetting the natural order of things!!!1!11!!!
The moderate school of thought has no-one leading the charge, but is incredibly sensible:
Someone fought for me to have equal rights. I should be able to work in any job that I'm qualified for if I choose without being berated by women who are bigots. If I choose not to work, I shouldn't be berated by the other group of women bigots.
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Re: Re:
Oh goody, another one of the tin-foil-hat brigade.
Sorry, none of the people on this site are "astroturfing," which doesn't mean what you think it means. And from what I understand, Mike makes most of his money by helping artists make more money, not from "Big Search, Big Hardware, and Big Piracy" (as if those three are not related in any way at all).
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Because of an accusation ... no trial, no evidence and no day in court - this is awesome
How far we have come, rejoice this is progress.
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And they are all related in that they don't want content creators to make much money because there's only so much money in the pot. Splitting some with the creators who do the work would only make it harder for the Big Search stock option princes and princesses to afford their hot tubs.
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sometimes things add up in funny ways.
At some point, even the nuttiest person must admit that the only reason people pay sites like this is to get the copyrighted content. No one uses a public site for backup. No one uses a public site like Megaupload to run a blog. They're engineered for one purpose only.
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Re: Re: Re: Re: Re: Re: Re: Re:
That's not true. They have to selectively allow people to browse the content; that is, they have to have the role of approving and disapproving the content. In the words of Playboy v. Hardenburgh, they must have "used a screening policy that allowed employees to view files before they were uploaded."
From what I understand, Megaupload does allow people who upload (say) .avi files, to allow that content to be transcoded and streamed; but that decision is done by the user, not Megaupload.
Also, r.e. "copywritten": there is such a thing as a "copywriter," i.e. "one who writes copy," as in a news article. No relation to copyright. That's probably the source of confusion.
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That dastardly UPS and their insidious brown marketing schemes!
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It is that simple.
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Take a peek at the Insight Community Case Studies. The big clients are UPS, American Express, Dell, Sun/Oracle, and LetsTalk.com, plus music startups like CybearSonic. Not exactly "Big Piracy," now, are they?
And ad revenues don't even pay for hosting costs. I know this from experience as a webmaster, and Mike has confirmed it numerous times.
And they are all related in that they don't want content creators to make much money because there's only so much money in the pot.
Sounds more like major labels to me. Which would make sense, actually, since Sony is both a major label, and "Big Hardware."
Seriously, though: you have no idea what you're talking about. You just make stupid little accusations and transparent little smear attempts.
The fact is that you think that anyone who doesn't agree with you is "astroturfing" for big, bad, nebulous organizations who are out to get you. That is classic loony-bin conspiracy theory nonsense.
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Re: sometimes things add up in funny ways.
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Re: Re: Megaupload IS
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adult content often makes bad law
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Re: Re: Re: Re: Re:
Where?
"She ruled that if Megaupload's conduct is "volitional," it can be directly infringing."
That's not the same thing. "Volition" is necessary but not sufficient for direct infringement. You also have to actuall do something prohibited by 106. Here opinion sort of made it sound like there wasn't any debate whether the plaintiff alleged copying, etc., but only whether any such acts were volitional.
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Re: Re: Re: Re: Re:
Really, it's hard to know the meaning of this ruling without looking at the complaint. It might just be an incomplete or misleading description rather than a wrong ruling.
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I do not understand the distinctions you are trying to make, and I don't think they are based in the law.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Irma Gonzalez
This demonstrates your level of English comprehension, so I'm not going to worry about it anymore.
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Also, even if you don't have a license and it's not fair use, that is not "end of issue," because there is a question as to who is liable (y'know, the point of this article/thread).
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I have never said anything MegaUpload has done is legal. The question is whether MegaUpload is liable and under what theory of liability (direct, vicarious, contributory).
Now, if they "transfer" content from one server to another, then they have made a copy, and therefore might be liable for direct infringement.
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lol
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Where?
It's on Page 7:
This, despite the fact that:
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I quoted it above, but in case you missed it, the judge outright rejected this inference.
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Remember, people tend to look at the loudest and most retarded arguments from the other side. Look at Christians for a good example. I am one, but I don't like being lumped in with the people who are starting wars, trying to get video games banned, claiming that the earth is flat, or that every kind of animal that ever existed exists now. That's how you turn people off to a movement.
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Uploading is not the only thing that might constitute direct infringement. That's quite a leap
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Re: sometimes things add up in funny ways.
Um...not usually. That's usually called criminal assault or brandishing.
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Re: Re: Megaupload IS "more than a passive conduit".
Perhaps it's a crime, but it's not the crime of "car theft". If you cover up evidence of a murder, you are perhaps guilty of obstruction of justice, but not of murder - even though you may have helped the murderer.
Similarily, helping someone to infringe is not DIRECT infringement. By definition, it's INdirect, and has different law that applies to it.
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I thought that's how the game is played around here except it's usually people complaining about Big Content instead of the other Big businesses. I'm just trying to spread the love.
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Oh really? Tell me more. As far as I can tell, his surveys about the wonderful future for artists usually come down to repeating the name Radiohead and talking about some guy who sold elaborate music boxes. They're all quite nice little niches, but I've never seen any story about how Mike is actually writing checks to artists or even helping someone else write the check. Usually he just seems to be saying that it's all going to be really cool as long as we keep giving away our content so Big Search can sell ads next to it.
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Re: Re: Re: Megaupload IS "more than a passive conduit".
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Take it to court and win, then you can say it's infringement.
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Ain't progress grand?
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Given that piracy continues unabated, who do you think?
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Apparently this word does not mean what you think it means.
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Yet you fail to notice the day when your nice lunchroom table and chairs are replaced with white plastic lawn furniture. Or when Sally and Joe from accounting (the biggest department) just stop showing up to join in the laughs, mostly because they are no longer employed at the office.
Your days are numbered, and the numbers are looking pretty small.
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Re: Re: Megaupload IS "more than a passive conduit".
Which is third party liability. Which would make this indirect, not direct infringement.
So you're missing the entire point of the article. How typical.
If you create a directory of cars and help people find the one they want to steal, that's called being an accomplice. It's not free speech. It's not "innovation". It's a crime.
You really need to learn the difference between direct and indirect. It'll make you look less foolish.
Sigh. At moments like this, I almost feel like the $150,000 penalty is actually fair.
You post an entire comment showing pure ignorance of the law, and then close with that? Hilarious.
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You seem to have me confused with another site.
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Interesting theory, but there is simply nothing that backs you up in the law. It's kind of funny when you make up theories that have no basis in the law and pretend they're factual.
You might want to stop that.
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You're right, I got my alphabet soup mixed up. It's the CDA, not DMCA that has a section 230. The DMCA has a Title II instead.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Irma Gonzalez
Care to provide an example of a prejudicial or discriminatory remark that isn't disparaging?
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Re: Re: Re: Re: Re: Re: Re: Irma Gonzalez
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So that's your yardstick? Well the Nazis didn't either, at first. I suppose you'd say everything they did up until the day they started that was just fine.
You greedtards (not my word either) make me sick.
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Re: Re: Megaupload IS "more than a passive conduit".
If you publish a map of streets and people use it to find the bank they want to rob, that's called being an accomplice. It's not free speech. It's not "innovation". It's a crime.
/s
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Masnick, you may wanna tell these folks to switch sides. While you have well reasoned arguments, you don't need people like this making all of you look like jackasses.
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Re: Re: Re: MegaUpload....
The question is have you sampled their products and categorized them into Grade A crack vs Crack Whore Grade
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Re: Re: Re: Re: Re: Re: Re: Re:
That was my point: she appears to be saying that "volition" alone, even without conduct, is sufficient to prove direct infringement.
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Let me clarify: she appears to be saying that "volition" is sufficient to prove direct infringement, even if Megaupload did not directly initiate any violation any of the rights in 17 USC 106.
That is not the standard that was established in Napster, Grokster, Limewire, etc. - all of which were found guilty of indirect infringement (inducement, contributory, or vicarious), but not guilty of direct infringement.
So, she appears to be ignoring case law and creating her own standard for direct infringement.
Whether that is true going forward remains to be seen, of course. This is still an incredibly preliminary stage of the proceedings. Even if there is an eventual verdict of direct infringement, it's likely that will be overturned on appeal.
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She specifically rejected the idea that Megaupload initiated any act that infringed on any of the 106 rights. That's what's so troubling.
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I seem to recall that the merchant treated the sale as just that, a sale, I wasn't 'licensed' the ability to listen to music, I was SOLD the music to listen to or use however I wanted to... I don't recall being presented with a list of 'licensed rights' with any of my music purchases over the years, so when did I agree that I was only 'licensing' the music I purchased?
Show me the license that was presented to me and that I agreed to before purchasing music on purchases of: Phonograph, 45 (smaller phonograph for those newbies), 8-Track, Cassette or CD (technically CD's may have a 'license' included, but it's not one that I saw or agreed to before I purchased it, so I'm not legally bound to comply with it from my perspective.....
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Re: Re: Re: Megaupload IS "more than a passive conduit".
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Re: Re: This was a summary judgment motion
Does anyone have the entire judgment or at least the full case citation to make looking it up easier?
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Re: MegaUpload....
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Wow. Just wow. You're really going to sit there and claim that he said that and also deny that there are criminal copyright infringement laws? Talk about jackasses. You people make me sick, too.
Abolish copyright.
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Just doing her part to keep the government's corporate partners happy, I guess.
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They might get away with doing that to a few people.
In the days of Henry VIII doing that to a few ringleaders generally worked. By the time of Charles I it didn't work. BY the late 18th century (American and French Revolutions) it really didn't work. As technology and education have progressed so this has worked less and less. Those who would control the masses have had to resort to subtler means. The suggestion you make of going back to such crude measures can only be a sign of desperation.
Statistically the chance of being put in jail for doing something technical on the internet is insignificant.
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Actually the argument is not that retarded. No-one is really claiming thatthe situation re copyright infringement is as bad as the holocaust, merely that it shares certain characteristics. What we are looking at in both cases is one side trying to get its own way by gerrymandering the law. The prediction is that this will not work in the long term and that those who work that way will end up looking bad.
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this is nothing
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