Twitter Suspends Accounts For 'Infringement' Despite Not Linking To Any Infringing Works

from the getting-further-and-further-away dept

It's already troubling enough to many people that merely linking to some content can make you subject to a DMCA takedown notice. Merely linking to content that others may have uploaded or hosted doesn't seem to fall into any of the exclusive rights covered by copyright law. But now it appears things are going even further, and Twitter is helping, for reasons that make no sense. After a Spanish film distributor sent copyright takedown notices to Twitter about the accounts of Elite Torrents and Bajui, both accounts were shut down.

Now, EliteTorrents is a torrent tracker site and Bajui is a linking site. And it's quite reasonable to argue that both sites enable a fair amount of copyright infringement. No one is arguing that point (though some would reasonably point out that neither site hosts or copies any infringing content themselves, leading back to that question of what rights are being violated by linking). However, even leaving that aside, the real concern here is that the tweets in question, which resulted in the takedown notices, didn't even link to any content. They did post film title names and a screenshot of the movie poster:
The clear implication here, of course, is that you could access a copy of that movie from the site. And it's quite likely that downloading the film via those sites would be infringing. But are the tweets alone infringement themselves? That seems like a much bigger stretch. How far would it go? Would it be infringing if I told you that you might be able to find a certain film if you went to a certain site? At some point, that's just outlawing speech.

Now, I'm sure some will argue that it doesn't matter. What these two sites are doing involves infringement, and thus any and all punishment, including losing their Twitter accounts is fine. But we do have limits for a reason. Even if you think that EliteTorrernts and Bajui are breaking the law, does that automatically justify any and all punishment? If someone jaywalks, is it okay for them to be thrown in prison for ten years "because they broke the law." That's not how this works. Here, it's not at all clear how these tweets violated copyright law in any way, and yet Twitter took the accounts down for copyright infringement. Does that mean that Twitter will now make judgments about your off Twitter activity to determine if you deserve a Twitter account? Doesn't that ring a lot of alarm bells?
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Filed Under: copyright, infringement, linking, talking about
Companies: bajui, elitetorrents, twitter


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  • icon
    Ninja (profile), 4 Sep 2015 @ 11:16am

    Doesn't that ring a lot of alarm bells?

    That would be enough reason to stop using Twitter. I've already posted links to sites like TPB on Facebook and Twitter alike. While I do avoid linking directly to infringing stuff under this type of policy I would be suspended as well.

    Seems older players are actively trying to remove themselves by going against what made them famous in the first place eh?

    link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 4 Sep 2015 @ 11:34am

      Re:

      Meh. It's like I've been saying for a few years now, this is a service for twits. I've never really understood why such an obvious nickname hasn't caught on.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Sep 2015 @ 1:41pm

        Re: Re:

        You could start a new Campaign "only Twitter is for twits."

        Full Definition of TWIT
        1: an act of twitting : taunt
        2: a silly annoying person : fool
        twit
        transitive verb
        twit·tedtwit·ting
        Definition of TWIT
        1: to subject to light ridicule or reproach : rally
        2: to make fun of as a fault

        link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 4 Sep 2015 @ 11:22am

    What these two sites are doing involves infringement, and thus any and all punishment, including losing their Twitter accounts is fine.

    Without quotes that'll do for my subject line. Thanks for saving me the typing. It's enough that you pirates know that what you're doing is wrong.

    Now on to: "But we do have limits for a reason. Even if you think that EliteTorrernts and Bajui are breaking the law, does that automatically justify any and all punishment?"

    OKAY, I'll answer NO to your childishly loaded "any and all". -- NOW, you tell me some other way to stop what you admit is contributory infringement. What level of punishment are you willing to advocate, then, that's effective yet BELOW losing Twitter accounts?

    Your move, and I predict a waffle, just more hand-wringing, "Oh, this is DREADFUL! Next copyright maximalists will be roasting puppies alive!"


    Slow page load? Have to click to see comments the fanboys censored?

    Get all the text and none of the ads with the new Techdirt Lite!
    https://www.techdirt.com/?_format=lite

    link to this | view in chronology ]

    • identicon
      cpt kangarooski, 4 Sep 2015 @ 11:37am

      Next copyright maximalists will be roasting puppies alive!

      Thanks for admitting it. Can you provide an address where this will take place, so that we can report it to the ASPCA?

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Sep 2015 @ 11:41am

      Re: What these two sites are doing involves infringement, and thus any and all punishment, including losing their Twitter accounts is fine.

      Well then your posting privlages have been suspended for using a pirate network (ToR). Or your a hypocrite. Take your pick.

      link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 11:31am

    If Twitter does not want potentially illegal services advertising on their site, is it not their right to deny service to the likes of EliteTorrents and Bajui?

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Sep 2015 @ 11:40am

      Re:

      Of Twitter as a free speech right do choose what their service is used for. Mike Masnick also as a free speech right to criticize those choices and there claimed legal basis.

      link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 4 Sep 2015 @ 11:41am

      Re:

      And which laws should they use to set their line?

      They are a global platform and its illegal for them to allow me to be seen in Russia, so I should have my account shutdown?

      I discuss people reverse engineering, thats illegal in a few countries so my account should be pulled?

      I discuss BT issues, some idiot claims that BT clients are illegal things so my account should be yanked?

      I could be executed for illegal lifestyle in a large portion of the UAE, so I shouldn't have an account?

      It is twitters playpen, and they can so what they want... but kowtowing to each petty whiner will leave them a platform empty of anything but forgotten advertiser accounts who can't reach anyone because everyones left or been banned because someone didn't like someone else.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Sep 2015 @ 12:02pm

        Re: Re:

        I would assume they'd follow the laws of the country they are operating out of. Dealing with the wishes of the regime they're living under comes first, everyone else second, if at all.

        There's admittedly no perfect answer to this - as you say, global platform combined with local laws has some interesting results. That being said, there's quite a difference between laws ordering a company to refuse service, and a company voluntarily refusing service due to possible legal issues.

        link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 4 Sep 2015 @ 12:37pm

          Re: Re: Re:

          "there's quite a difference between laws ordering a company to refuse service, and a company voluntarily refusing service due to possible legal issues."

          So all it takes is the threat of legal issues to get your way with twitter.

          The accounts in question were within the law as written, might not like what happens beyond that but removing the accounts because of possible legal action (because no law said they needed to kill the accounts) means they should wipe out more accounts because they could face legal issues for violating different laws. Like when Italy convicted, IIRC, Google execs.

          link to this | view in chronology ]

    • identicon
      AnonCow, 4 Sep 2015 @ 12:02pm

      Re:

      Women driving cars is illegal in Saudi Arabia. If I post a picture of my sister driving a car, should Twitter suspend my account because I am abetting "illegal" activity?

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Sep 2015 @ 12:12pm

        Re: Re:

        Are you advertising a business that is aimed at teaching saudi women to break that law? If yes, then yes, Twitter probably should yoink your account.

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Sep 2015 @ 12:21pm

          Re: Re: Re:

          And if said business is located in the United States?

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Sep 2015 @ 12:34pm

            Re: Re: Re: Re:

            I don't know. That would probably be legal (and thus not-account-removal-causing), unless there's something in the federal registry that forbids teaching foreign residents to break the laws of their own homelands.

            Disclaimer: this is pure guesswork on my part and most definitely not any sort of legal advice. Please do not start a business based on what I just said.

            link to this | view in chronology ]

            • icon
              art guerrilla (profile), 4 Sep 2015 @ 5:11pm

              Re: Re: Re: Re: Re:

              "...this is pure guesswork..."

              and yet enlightenment has not followed...

              you either allow free speech, or you are a censor...

              simple as a pimple

              link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 11:42am

    Merely linking to content that others may have uploaded or hosted doesn't seem to fall into any of the exclusive rights covered by copyright law.

    You have to read it closely: "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . ." "To authorize" refers to contributory liability--only the copyright owner can authorize another to exercise one of the exclusive rights. Linking to a copyrighted work is authorizing someone to use that work, i.e., contributing to that use. If the authorization is itself not authorized, it's contributory infringement. Simple!

    link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 4 Sep 2015 @ 11:49am

      Re:

      "To authorize" refers to contributory liability--only the copyright owner can authorize another to exercise one of the exclusive rights. Linking to a copyrighted work is authorizing someone to use that work, i.e., contributing to that use. If the authorization is itself not authorized, it's contributory infringement. Simple!

      Not that simple. Merely linking to something is not, in any way, an "authorization." It's just a link. A pointer. A direction. If you ask me where the nearest bank is, and I give you directions, I have not "authorized" you to go to the bank, nor have I contributed to anything when you rob that bank.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Sep 2015 @ 12:29pm

        Re: Re:

        You guys can argue the finer point of US law all you like, but this happened in Spain.

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Sep 2015 @ 9:49pm

          Re: Re: Re:

          No it didn't. Twitter is a US website; EliteTorrents and Bajui on the other hand may very much be located in Spain, but there Twitter accounts and the websites them-selfs are not the same.

          link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Sep 2015 @ 2:56pm

        Re: Re:

        Not that simple. Merely linking to something is not, in any way, an "authorization." It's just a link. A pointer. A direction. If you ask me where the nearest bank is, and I give you directions, I have not "authorized" you to go to the bank, nor have I contributed to anything when you rob that bank.

        It's not "authorize" in the everyday sense of the word. It's "authorize" in the copyright sense. That is, it's a TERM OF ART. It is a legal fact that linking to infringing material gives rise to contributory infringement. I'm explaining why by pointing to the exact words in the statute that support that determination. You're talking about robbing banks.

        link to this | view in chronology ]

        • icon
          Atkray (profile), 4 Sep 2015 @ 3:20pm

          Re: Re: Re:

          Ah... and they are not comparable because infringement is not stealing, right?

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Sep 2015 @ 3:28pm

            Re: Re: Re: Re:

            infringement is not stealing because stealing is infringement.

            link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Sep 2015 @ 4:47pm

            Re: Re: Re: Re:

            Ah... and they are not comparable because infringement is not stealing, right?

            Good grief. "To authorize" is a term of art that has a specific legal meaning in a specific legal context. You can't point to some other nonlegal meaning from a different context and argue that the legal meaning in the legal context must be different.

            But to go with Mike's terrible example, it could be that the law considers pointing a bank robber to a bank when you know that the robber intends to rob that bank is aiding and abetting. It's questionable whether it goes that far in that context, but in the context of copyright infringement on the internet, it certainly does go that far. Hence the lack of DMCA safe harbors for linkers and the case law that says so.

            Part of the problem is that Mike doesn't understand contributory liability or aiding and abetting. This seems to be willful blindness on his part, at this point. From what I can surmise, he seems to think that everyone should be able to help others commit crimes. The law has never agreed.

            link to this | view in chronology ]

            • icon
              techflaws (profile), 4 Sep 2015 @ 10:05pm

              Re: Re: Re: Re: Re:

              Mike does understand it and reject it as any sane person would do. Why the public lets lawyers gets away with twisting a word's original and publicly agreed on meaning for their own gain will forever be beyond me.

              link to this | view in chronology ]

        • identicon
          cpt kangarooski, 4 Sep 2015 @ 6:05pm

          Re: Re: Re:

          It is a legal fact that linking to infringing material gives rise to contributory infringement.

          That's not true, and also there is no such thing as infringing material. Material can't infringe; only people can infringe. Action doesn't become contributory infringement by contact with mere material, as though it carried a pathogen. It has to come from providing certain assistance to a human being who engaged in direct infringement.

          A link will not necessarily be sufficient assistance to constitute contributory infringement. And there are a number of other problems with your outright untruthful claim, for which I suggest you take a look at my much longer comment to this article. Well, actually I suggest that you take a long walk off a short pier, but other people may find it informative.

          link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Sep 2015 @ 2:23pm

      Re:

      "Linking to a copyrighted work is authorizing someone to use that work, i.e., contributing to that use. If the authorization is itself not authorized, it's contributory infringement."

      Except that's not true. If it was, then Google and Bing would be in plenty of trouble, as would the Internet Archive.

      In reality, linking to a copyrighted work is telling others where to find that copyrighted work. If it can be shown in court that this was done while knowing that the work was not authorized by the copyright holder(s), then there's contributory; otherwise it isn't.

      Since none of this stuff involves the courts and there has been no establishment of who the rights holders are, whether they've authorized this specific instance of the work, whether fair use applies, or anything else... it's not contributory infringement.

      This is the equivalent of someone tweeting a photo of an open beer, when that someone is known in certain circles to bootleg beer for minors. Sure, it's likely that the photo is their way of letting their underage followers know that it's time to come and buy their booze, but that doesn't mean they're actually doing it. This doesn't hold up in meatspace, and adding "on a computer" shouldn't suddenly make it OK.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Sep 2015 @ 2:39pm

        Re: Re:

        "and there has been no establishment of who the rights holders are, whether they've authorized this specific instance of the work"

        From the original article...

        The takedown notices in which the accounts were targeted were sent by the Spanish company Golem Distribución, who own the distribution rights of the film “Cut Bank.”

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Sep 2015 @ 3:12pm

          Re: Re: Re:

          whether they've authorized this specific instance of the work

          Point me to the database where third parties can determine who owns a work, and who has license and for what uses of a work. Third parties have no mechanism for finding out what licenses have been granted. Therefore third parties cannot be expected to determine whether any particular copy or use has been licensed.

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Sep 2015 @ 3:19pm

            Re: Re: Re: Re:

            I'm pretty sure that whoever uploaded the torrent knew they didn't have a license to do so.

            "point me to the database"

            http://wondermark.com/1k62/

            you mean this database

            link to this | view in chronology ]

            • identicon
              Anonymous Coward, 4 Sep 2015 @ 3:38pm

              Re: Re: Re: Re: Re:

              I'm pretty sure that whoever uploaded the torrent knew they didn't have a license to do so.

              They are not a third party, and they are person or people the copyright holders should be pursuing.

              link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Sep 2015 @ 2:58pm

        Re: Re:

        Except that's not true. If it was, then Google and Bing would be in plenty of trouble, as would the Internet Archive.

        It's absolutely, 100% true. For contributory infringement, there has to be (1) material contribution, and (2) knowledge. Linking is material contribution. When knowledge is added, it becomes contributory infringement. That's why Google and others remove infringing links when they receive knowledge that they point to something infringing. That's why the DMCA does not give safe harbor under 512(d) to those that fail to remove infringing links once they receive notice of them.

        link to this | view in chronology ]

    • identicon
      cpt kangarooski, 4 Sep 2015 @ 5:59pm

      Re:

      Simple!

      It's not simple. You may be simple-minded, but it's not simple.

      Linking may authorize someone to use a work, but mere 'use' is not an exclusive right of copyright. You need something more specific. Further, linking may not authorize someone to use a work, and anyway, authorizing by itself is not sufficient grounds for contributory infringement.

      Here's an excerpt from Flava Works v. Gunter, 689 F.3d 754 (7th Cir. 2012). I apologize to the others -- not you -- for the length, but I don't think it can be trimmed down much further. The really key bits I have emboldened for emphasis.

      Flava specializes in the production and distribution of videos of black men engaged in homosexual acts.

      ...

      The websites that host them are behind a "pay wall"; that is, access to them (except for previews) is available only upon payment of a fee in advance. The user must agree not to copy, transmit, sell, etc. the video, although Flava's terms of use permit the user to download it to his computer for his "personal, noncommercial use" — only.

      Enter myVidster, an online service engaged in what is called "social bookmarking" — enabling individuals who have similar tastes to point one another (and actually provide one another access) to online materials that cater to those tastes, by bookmarking materials on the social-bookmarking service's website.

      ...

      [The court then describes how myVidster works, which is essentially that users enter in URLs of videos, and the myVidster website then displays those videos within a frame; the videos themselves are not ordinarily copied by myVidster.]

      ...

      [I]f the uploaded video is copyrighted, the uploader has (depending on the terms of use) infringed the copyright. A customer of Flava is authorized only to download the video (or if he obtained it on a DVD sold by Flava, to copy it to his computer) for his personal use. If instead he uploaded it to the Internet and so by doing so created a copy (because the downloaded video remains in his computer), he was infringing.

      Is myVidster therefore a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video? myVidster is not just adding a frame around the video screen that the visitor is watching. Like a telephone exchange connecting two telephones, it is providing a connection between the server that hosts the video and the computer of myVidster's visitor. But as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner's exclusive right, conferred by the Copyright Act, "to reproduce the copyrighted work in copies" and "distribute copies ... of the copyrighted work to the public." 17 U.S.C. § 106(1), (3). His bypassing Flava's pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava's copyrighted video by uploading it to the Internet.

      The right to control copying is not the only exclusive right of a copyright owner. That would make life too simple for us. He also has an exclusive right "to perform the copyrighted work publicly." § 106(4). But we begin our analysis with the right to prevent copying and ask whether myVidster is the copiers' accomplice.

      ...

      A typical, and typically unhelpful, definition of "contributory infringer" is "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971).

      ...

      We ... prefer the succinct definition of contributory infringement in Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 706 (2d Cir.1998): "personal conduct that encourages or assists the infringement." See also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir.2007).

      Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava's pay wall, thus reducing Flava's income. No doubt. But unless those visitors copy the videos they are viewing on the infringers' websites, myVidster isn't increasing the amount of infringement. See Perfect 10, Inc. v. Visa Int'l Service Ass'n, 494 F.3d 788, 797 (9th Cir.2007). An employee of Flava who embezzled corporate funds would be doing the same thing — reducing Flava's income — but would not be infringing Flava's copyrights by doing so. myVidster displays names and addresses (that's what the thumbnails are, in effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted. Someone who uses one of those addresses to bypass Flava's pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket. The facilitator of conduct that doesn't infringe copyright is not a contributory infringer.

      A practical objection to stretching the concept of contributory infringement far enough to make a social-bookmarking service a policeman of copyright law is that the service usually won't know whether a video that a visitor bookmarks on the service's website is protected by copyright. Congress addressed this problem in the Digital Millennium Copyright Act of 1998, Pub.L. 105-304, 112 Stat. 2860. The [Digital Millennium Copyright] Act provides a safe harbor to Internet service providers. It states that a provider isn't liable for copyright infringement by "referring or linking users to an online location containing infringing material" if it meets certain conditions — it doesn't know the material is infringing, it isn't aware of facts that would make the infringement apparent, upon learning such facts it acts expeditiously to remove or disable access to the infringing material, it doesn't receive a financial benefit directly attributable to the infringing activity, 17 U.S.C. § 512(d), and it terminates repeat infringers. § 512(i)(1)(A). myVidster received "takedown" notices from Flava designed to activate the duty of an Internet service provider to ban repeat infringers from its website, and Flava contends that myVidster failed to comply with the notices. But this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn't need a safe harbor. As the record stands (a vital qualification, given that the appeal is from the grant of a preliminary injunction and may therefore be incomplete), myVidster is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer.

      It might seem that the mention in the Digital Millennium Copyright Act of "referring or linking users to an online location containing infringing material" expands the concept of contributory infringement to any reference to, or linkage in the sense of facilitating access to, copyrighted material. But this is implausible, and anyway is not argued by Flava. Taken literally it would make the publication, online or otherwise, of any contact information concerning a copyrighted work a form of contributory infringement. A more plausible interpretation is that Congress wanted to make the safe harbor as capacious as possible — however broadly contributory infringement might be understood, the Internet service provider would be able to avoid liability.

      Now if myVidster invited people to post copyrighted videos on the Internet without authorization or to bookmark them on its website, it would be liable for inducing infringement, Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., supra, 545 U.S. at 930, 936, 125 S.Ct. 2764 — a form of contributory infringement, see Perfect 10, Inc. v. Amazon.com, Inc., supra, 508 F.3d 759*759 at 1170-71, that emphasizes intent over consequence. But ... there is no proof that myVidster has issued any such invitations.

      myVidster knows that some of the videos bookmarked on its site infringe copyright, but that doesn't make it a facilitator of copying. Although visitors who view those videos are viewing infringing material, they are paying nothing for it and therefore not encouraging infringement, at least in a material sense, unless perhaps the infringer gets ad revenue every time someone plays the video that he posted on the Internet — but there is no evidence of that. True, bookmarking is a way of making friends on a social network, and one needs something to bookmark, and so if you want to make friends with people who like the kind of videos that Flava produces you may be inclined to upload those videos to the Internet in the hope that someone will bookmark them on myVidster's website and someone else will watch them and be grateful to you. But this is very indirect. For will a visitor to myVidster who watches a bookmarked infringing video know whom to be grateful to — know who uploaded it, thus enabling it to be bookmarked and viewed? That is unlikely. The unauthorized copier — the uploader of the copyrighted video — is not a part of the social network unless he's a myVidster member and uploads the Flava video for the purpose of its being bookmarked on myVidster and somehow gets credit for the bookmarking and for the ensuing viewing of the bookmarked video. There is no evidence that there are any such people.

      A term in the conventional definition of contributory infringement — "material contribution "— invokes common law notions of remoteness that limit efforts to impose liability for speculative imaginings of possible causal consequences. As we said in BCS Services, Inc. v. Heartwood 88, LLC, 637 F.3d 750, 755 (7th Cir.2011), "An injury will sometimes have a cascading effect that no potential injurer could calculate in deciding how carefully to act. The effect is clear in hindsight — but only in hindsight." The absence of evidence of myVidster's effect on the amount of infringement of Flava's videos brings concern about remoteness into play.

      ...

      So far we've been discussing infringement just by copying, and we can't stop there. For remember that the Copyright Act also makes it unlawful "to perform the copyrighted work publicly," 17 U.S.C. § 106(4), defined, so far as relates to this case, as "to transmit or otherwise communicate a performance ... of the work ... to the public ... whether the members of the public capable of receiving the performance... receive it in the same place or in separate places and at the same time or at different times." § 101. One possible interpretation is that uploading plus bookmarking a video is a public performance because it enables a visitor to the website to receive (watch) the performance at will, and the fact that he will be watching it at a different time or in a different place from the other viewers does not affect its "publicness," as the statute makes clear. We'll call this interpretation, for simplicity, "performance by uploading." An alternative interpretation, however — call it "performance by receiving" — is that the performance occurs only when the work (Flava's video) is transmitted to the viewer's computer — in other words when it is "communicated to the public in a form in which the public can visually or aurally comprehend the work." William F. Patry, Patry on Copyright § 14:21, p. 14-41 (2012).

      On the first interpretation, performance by uploading, the performance of a movie in a movie theater might by analogy be said to begin not when the audience is seated and the movie begins but a bit earlier, when the operator of the projector loads the film and puts his finger on the start button; while on the second interpretation, performance by receiving, it begins when he presses the button and the reel begins to unwind. The second interpretation is certainly more plausible in the movie-theater setting. But in the setting of our case the viewer rather than the sender (the latter being the uploader of the copyrighted video) determines when the performance begins, and it is odd to think that every transmission of an uploaded video is a public performance. The first interpretation — public performance occurs when the video is uploaded and the public becomes capable of viewing it — is better at giving meaning to "public" in public performance but worse at giving meaning to "performance." Legislative clarification of the public-performance provision of the Copyright Act would therefore be most welcome.

      The second interpretation — the performance occurs when the video is viewed — is more favorable to Flava, because myVidster plays a role there and not in uploading. So we're surprised that Flava doesn't urge it. The first interpretation is hopeless for Flava. For there is no evidence that myVidster is contributing to the decision of someone to upload a Flava video to the Internet, where it then becomes available to be book-marked on myVidster's website. myVidster is giving web surfers addresses where they can find entertainment. By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not "transmitting or communicating" them. Cf. Perfect 10, Inc. v. Amazon.com, Inc., supra, 508 F.3d at 1159-61; In re Aimster Copyright Litigation, supra, 334 F.3d at 646-47.

      Is myVidster doing anything different? To call the provision of contact information transmission or communication and thus make myVidster a direct infringer would blur the distinction between direct and contributory infringement and by doing so make the provider of such information an infringer even if he didn't know that the work to which he was directing a visitor to his website was copyrighted. Then he would have to search for a safe harbor in the Digital Millennium Copyright Act. myVidster doesn't touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster. Compare National Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10, 13 (2d Cir.2000), a retransmission case.

      But if the public performance is the transmission of the video when the visitor to myVidster's website clicks on the video's thumbnail (the second interpretation) and viewing begins, there is an argument that even though the video uploader is responsible for the transmitting and not myVidster, myVidster is assisting the transmission by providing the link between the uploader and the viewer, and is thus facilitating public performance. There is a remote analogy to the "swap meet" operated by the defendant in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262 (9th Cir.1996). That was a flea market in which, as the defendant knew, pirated recordings of music copyrighted by the plaintiff were sold in such bulk that the subsequent performance by the buyers (when they played the recordings) may have satisfied the broad definition of public performance in the Copyright Act, although the opinion doesn't say whether the infringement consisted of unauthorized distribution of copies or unauthorized public performance and probably meant the former. Under either interpretation the swap meet operator was providing "support services" without which "it would [have been] difficult for the infringing activity to take place in the massive quantities alleged." Id. at 264.

      In contrast, Flava's pirated videos are not sold, and there isn't even admissible evidence that they're actually being accessed via myVidster, rather than via other websites, and if they are not, myVidster is not contributing to their performance. Unlike the defendant in Fonovisa, myVidster is not providing a market for pirated works, because infringers who transmit copyrighted works to myVidster's visitors are not selling them. That isn't determinative, because copyrights can be infringed without a pecuniary motive. But it is relevant to whether myVidster's bookmarking service is actually contributing significantly to the unauthorized performance of Flava's copyrighted works by visitors to myVidster's website. It's not as if myVidster were pushing the uploading of Flava videos because it had a financial incentive to encourage performance of those works, as the swap meet did.

      Nor is this case like our Aimster case, cited earlier. That was a file-sharing case. Kids wanted to swap recorded music (often copyrighted) over the Internet. The swapping required special software — which Aimster provided. By doing so it created the online equivalent of a swap meet, since anyone equipped with Aimster's software could easily obtain copies of copyrighted songs in AOL chat rooms; the first three letters in "Aimster" were an acronym for "AOL instant messaging." Although it wasn't proved that all the swapped recordings were copyrighted, it was apparent that most were — and maybe all, for we noted that "Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use." In re Aimster Copyright Litigation, supra, 334 F.3d at 653 (emphasis added). That can't be said about myVidster's social-bookmarking service. Unlike Aimster, it's not encouraging swapping, which in turn encourages infringement, since without infringement there is nothing to swap.

      ...

      Flava may be entitled to additional preliminary injunctive relief as well, if it can show, as it has not shown yet, that myVidster's service really does contribute significantly to infringement of Flava's copyrights.


      Ultimately, the Seventh Circuit vacated the injunction against myVidster because Flava had not shown that it had contributed to infringement.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Sep 2015 @ 3:45am

        Re: Re:

        It's not simple. You may be simple-minded, but it's not simple.

        There's no need for the personal attacks. You're a smart guy, let's have a smart conversation.

        Linking may authorize someone to use a work, but mere 'use' is not an exclusive right of copyright. You need something more specific. Further, linking may not authorize someone to use a work, and anyway, authorizing by itself is not sufficient grounds for contributory infringement.

        I agree that it's more complicated in that there is debate in the case law whether merely authorizing someone to exercise an exclusive right is enough to impose liability simpliciter. The debate is particularly strong when it comes to the distribution right. Some courts say that simply making a work available is a distribution. Many smart scholars, such as David Nimmer, agree. Other courts and commenters say the work has to be downloaded before there's a distribution. There are similar issues with the other rights.

        Mike said: "Merely linking to content that others may have uploaded or hosted doesn't seem to fall into any of the exclusive rights covered by copyright law." I was merely pointing out that it does "fall into" the exclusive rights under the words "to authorize." Whether that authorized infringement has to occur before liability attaches is beside the point I was making. The exclusive rights aren't just "to do," they're "to authorize." Linking falls under "to authorize." You haven't refuted this, and it's true.

        Here's an excerpt from Flava Works v. Gunter, 689 F.3d 754 (7th Cir. 2012). I apologize to the others -- not you -- for the length, but I don't think it can be trimmed down much further. The really key bits I have emboldened for emphasis.

        No apology needed--I love case law. No snark needed either. That case is interesting because Posner struggles with the making available issue in the context of the performance right. But it also just reinforces my point: Linking can lead to contributory liability. The reason Flava Works was not likely to succeed on the merits was because there was no evidence that anyone had clicked on the links and streamed the videos. It's an issue of EVIDENCE.

        As an aside, my favorite line in that case is where Posner says: "Brevity is the soul of wit and tediousness its limbs and outward flourishes." It's ironic because Posner is anything but brief, and that opinion is tediously filled with irrelevant ramblings.

        Everything you quoted from the first "Flava specializes" to "remoteness into play" is about the reproduction and distribution rights. myVidster's service provided embedded videos (with links supplied by its users) for streaming, so Posner is correct that neither the reproduction right nor the distribution right is infringed.

        You cut this part out, but as Posner says: "The direct infringers in this case are the uploaders; myVidster is neither a direct nor a contributory infringer—at least of Flava's exclusive right to copy and distribute copies of its copyrighted videos." That is correct.

        The question is whether performance right is infringed--it's a public performance case, not a reproduction or distribution case. That analysis picks up where he says (as you quote): "So far we've been discussing infringement just by copying, and we can't stop there."

        Posner posits that there are two potential ways the performance right could be infringed: (1) uploading to host server + embedding on myVidster, or (2) uploading to host server + embedding on myVidster + streaming to user. This is the making available issue: Is it enough that the stream is available, or does someone have to stream it?

        He calls the first "performance by uploading" and the second "performance by receiving." The difference between the two is whether the link is actually clicked such that the embedded video is actually streamed to the user. Posner doesn't say which is correct.

        This is the key part: "there is an argument that even though the video uploader is responsible for the transmitting and not myVidster, myVidster is assisting the transmission by providing the link between the uploader and the viewer, and is thus facilitating public performance." Thus, Posner says that myVidster might be liable as a contributory infringer under the "performance by receiving" theory.

        But the problem was this: "there isn't even admissible evidence that they're actually being accessed via myVidster, rather than via other websites, and if they are not, myVidster is not contributing to their performance." There was NO EVIDENCE that anyone had clicked on the links and watched the videos.

        As Posner states, "on the record compiled so far in this litigation there is no basis for the grant of a preliminary injunction." Without evidence that anyone had streamed anything, Flava Works wasn't likely to succeed on the merits. Of course, given the procedural posture of the case, and given that myVidster would be the one with this evidence, it's not a surprise.

        I agree that the case law is somewhat complicated, but my point still stands: The textual hook for contributory liability comes from the "to authorize" part of Section 106. We can discuss what evidence is necessary to prove such liability, but that's not the point I was making.

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Sep 2015 @ 7:42pm

          Re: Re: Re:

          This coming from the chicken impersonator.

          You couldn't have a smart conversation if it clocked you in the face and infringed the copyright on your rectum.

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Sep 2015 @ 5:23am

            Re: Re: Re: Re:

            Oh, look! You didn't have anything smart to add to the conversation, so you just went with an ad hominem. What a shock!

            Seriously, though, the text in 106 that provides for contributory liability is "to authorize." Mike is wrong to suggest otherwise. However, I have no doubt that Mike will continue to claim that there's no textual basis for contributory liability, despite my having pointed out to him that he's wrong.

            link to this | view in chronology ]

        • identicon
          cpt kangarooski, 10 Sep 2015 @ 9:45pm

          Re: Re: Re:

          Sorry it took so long for me to reply; it's been a hell of a week out here.

          There's no need for the personal attacks.

          Why not? I have no problems with calling an ass an ass.

          I agree that it's more complicated in that there is debate in the case law whether merely authorizing someone to exercise an exclusive right is enough to impose liability simpliciter. The debate is particularly strong when it comes to the distribution right. Some courts say that simply making a work available is a distribution. Many smart scholars, such as David Nimmer, agree. Other courts and commenters say the work has to be downloaded before there's a distribution. There are similar issues with the other rights.

          Of course, in this case, both sides are wrong. Providing files for downloading cannot be distribution. The actual downloading is reproduction for sure (mitigated a bit by Cablevision), and there is a case to be made for secondary liability for the reproduction, but the distribution right in s. 106 is "to distribute copies or phonorecords of the copyrighted work," and since copies and phonorecords are both specifically defined in s. 101 as "material objects," they cannot be distributed by downloading any more than I can download a brick from homedepot.com. If providing files for downloading has to be considered direct infringement, it will probably fit better in the public display and public performance rights, though rightsholders have obvious reasons to not like that. For someone who is delving into rather technical aspects of copyright, I'm surprised to see that you've overlooked such plain language in the statute. Oh well, the courts routinely fuck that one up too.

          In any case, Nimmer's wrong; you cannot have a secondary infringement without an underlying direct infringement. This is blackletter law. Making available is not infringing until someone actually takes advantage of it. Of course this wouldn't be the first time that the famous treatise writers get it wrong. I personally argued with Bill Patry that his interpretation of s. 109 (he basically argued the publisher's side) was wrong, and my reading was borne out in Kirtsaeng.

          The only reason this is even argued is because plaintiffs are too lazy to get proper evidence of direct infringement. It's not simply a difference of opinion. This laziness is evident throughout copyright law in fact, and lately is best being seen through bloody-minded insistence that ISPs and governments police the Internet on behalf of copyright holders, and at their own expense.

          Linking falls under "to authorize." You haven't refuted this, and it's true.

          And as I said, linking may be secondary infringement, but it also may not be; circumstances matter. What I refuted was the absolute nature of your statement, and I was correct in that.

          No snark needed either.

          I disagree.

          Linking can lead to contributory liability.

          Again, I never said it couldn't. I just said that while it may, it doesn't necessarily.

          Everything you quoted from the first "Flava specializes" to "remoteness into play" is about the reproduction and distribution rights. myVidster's service provided embedded videos (with links supplied by its users) for streaming, so Posner is correct that neither the reproduction right nor the distribution right is infringed.

          As previously noted, distribution never happens over a wire; it's physically impossible to infringe in that way over the Internet.

          He calls the first "performance by uploading" and the second "performance by receiving." The difference between the two is whether the link is actually clicked such that the embedded video is actually streamed to the user. Posner doesn't say which is correct.

          Of course he doesn't; the case doesn't require it. That's just standard operating procedure for a court. Thus you can gain no support by saying that Posner considered the possibility that merely linking to a stream was secondary infringement (even though you immediately try), while I still seem to be doing okay with my 'maybe it is, maybe it isn't' approach.

          link to this | view in chronology ]

  • identicon
    AnonCow, 4 Sep 2015 @ 11:58am

    If those accounts were "infringing" wouldn't Twitter also be infringing and should, likewise, be shut down?

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 1:12pm

    So now we're down to it's the thought that counts. You know the police can't arrest you here without some sort of evidence to committing a crime.

    Yet the copyright forces appear to be more powerful with just accusations making you guilty till you prove your innocence. In a supposedly free country, what's wrong with this picture?

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 4:37pm

    A website self-policing itself? OH THE HORROR

    link to this | view in chronology ]

  • icon
    Dan (profile), 4 Sep 2015 @ 5:48pm

    What about the poster image?

    It seems to me the infringement would be on the promotional poster image itself, if not the actual film. Even thou it's a poster designed for the purpose of promotion, that doesn't mean you can display it without the creator's permission. Unless of course, you are doing a critique of the poster itself. Clearly, not the case here.

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Sep 2015 @ 9:57pm

      Re: What about the poster image?

      Any reasonable discussion or identification is acceptable. And even if its not, that should only entangle Ellietorrent, not Bajui.

      link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2015 @ 11:53am

    Linking is not copyright violation.

    link to this | view in chronology ]

  • identicon
    Davis, 9 Sep 2015 @ 6:18am

    Clearly the author doesn't know the law

    It's called contributory infringement and has been on the books since 2001. sic A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001). Techdirt, please do some research before posting your pro-piracy views going forward. http://www.copyright.gov/docs/regstat072204.html

    link to this | view in chronology ]

  • identicon
    Siva, 31 Mar 2016 @ 9:48am

    Nice discusion

    Read some good comments/ discussions!

    Service to Community

    link to this | view in chronology ]


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