Publishers Can't Just Blame Ad Network For Having Ads On A Site That Links To Infringing Content
from the properly-applying-liability dept
As we've seen in some cases, there is a belief among some that many of the worst provisions in SOPA already exist under US copyright law. The latest story involves publishers Elsevier and John Wiley going after ad networks Chitika and Clicksor, because their ads showed up on a site that linked to (but did not host) some content that allegedly infringed. We mentioned this case earlier in the year, but the latest ruling is at least a slight limit on this attempt at what appears to be fourth party liability, rather than third party liability. Note the distance. Someone puts up a website with some infringing content. Someone else links to that content. Someone else provides advertising on that site that links... and the copyright holder claims the advertiser is liable? Huh?The ruling does go against the publishers here, but only because they failed to first send a notice alerting Chitika, so the court said that Chitika didn't know that the content was infringing:
Plaintiffs do not allege facts showing that Chitika was familiar with the content of the Pharmatext website, or knew (or had reason to know) that such content was infringing. Thus, plaintiffs fail to support with plausible facts their conclusory allegations that Chitika “must have had knowledge” of the alleged infringement of plaintiffs’ books...and that Chitika “plac[ed] ads on the Pharmatext site because [it] believe[d] that Pharmatext users – in other words, people seeking to obtain pirated copies of copyrighted books – are a target audience for particular advertisers.”Of course, as Eric Goldman notes in his analysis (linked above), this suggests that if Elsevier had sent notice, then it might have a claim... and suddenly we're back in SOPA territory, since that has a notice provision for advertisers.
There is also some discussion in the case of whether or not US jurisdiction is proper, seeing as the site was directed at users in India. Elsevier claimed that because its investigators downloaded the content in the US, that means it's proper to apply US laws, but the court isn't entirely sure of that:
While it appears that Chitika may eventually be entitled to judgment on this ground (that is, plaintiffs’ failure to allege any act of direct infringement occurring entirely within the United States), factual issues involving the structure of the Internet and the locus of the infringing activity remain (Where did the copying take place? Where are the third-party websites and servers, from which unauthorized copies of plaintiffs’ books were downloaded?). These issues preclude the granting of the motion on this ground.Of course, even pre-SOPA, the Justice Department and ICE like to claim that any .com or .org is automatically subject to US jurisdiction. Either way, it's a reminder that even without SOPA or PIPA in place, the courts may be creating very similar caselaw anyway. That's pretty scary.
Especially when it comes to such fourth party, or tertiary liability, since it seems positively crazy to think that someone so disconnected from any law breaking might be legally liable for it. Again, as Goldman notes:
Notice that this court totally sidestepped (or missed?) the tertiary liability aspect of this case--that Chitika was a support provider to a site that only provided links to allegedly infringing files. To me, it would be entirely appropriate for the court to say that any tertiary player categorically lacks the ability to materially contribute to infringing activity. Otherwise, once we start doing a dragnet for service providers to service providers to infringers, the universe of potential defendants grows to a ridiculous size.If anything this is why we should be creating further safe harbors for parties, not decimating them with things like SOPA and PIPA.
Filed Under: ad networks, fourth party liability, secondary liability, sopa, tertiary liability, third party liability
Companies: chitika, clicksor, elsevier, john wiley
