In 2004, Joel was using Kazaa, which is P2P, not bitTorrent, so no "seeding" was done.
I may have "failed" in this way myself. I knew that he was using Kazaa, but I assumed that it used a protocol that is similar to torrents.
If it was a literal "peer-to-peer" protocol, where each user only copies a file from one other user, then he would probably be responsible for far fewer infringements. Given the upload speeds that existed before 2003, sharing even a single file with 1000 individuals would take years.
In fact, the P2P protocol that Kazaa used is called FastTrack - the same protocol used by Grokster and Morpheus. It is not a one-to-one P2P protocol, but is in fact closer to how torrents work. That is, each file may have thousands of users downloading, and also thousands of users uploading. Those users are connected via "supernodes," which are (AFAIK) a centralized equivalent of "swarms."
At least, that's what I've been able to work out. The FastTrack protocol details are not exactly helpful in this matter.
In any case, there's no way in Hell that Joel ever shared each file more than 1000 times. It is likely that this figure is much too high.
When Joel chose to seed those songs, to give them away online, he started a chain of events, and made it possible for others to do the same.
There's no evidence (and I don't believe that it was even alleged) that Joel was the initial source of those songs. In fact, the lawsuit alleges that he "downloaded" those songs. He was simply another "step down the line."
If you're counting all users in all swarms when figuring damages, then you can only count these users if you sue the initial source of the files. In this case, you wouldn't be able to declare any actual damages if you're suing anyone "down the line." Otherwise, you're counting a single infringement hundreds of times - it's not even remotely close to calculating actual damages.
If you are suing someone "down the line" (like Joel), you must do the numerically correct thing, and only count the number of infringements that the seeder actually participates in.
Even here, that number is larger than it actually should be. If a swarm has 100 seeders and 400 leechers, then there is a grand total of 500 infringements. So, the actual damages must be calculated using those 500 infringements. If you sue one of those 100 seeders, then each seeder would be responsible for five infringements each.
In other words, the 1000 number is even higher than it really should be, since I counted each person in his swarm as a leecher (and not a seeder themselves). I was being generous to the RIAA.
The judge argues that one of the factors that makes this "reasonable" is that if Tenenbaum had wanted to license the songs for distribution himself, the cost would have been "enormous," according to the labels.
What, seriously?
Let's try to actually figure out what the licensing deal would cost.
First, we'll assume the iTunes model - which is one of the highest out there, so it favors the RIAA. For a $.99 MP3, iTunes takes $.30, so the remainder is $.69 per track.
Next, we'll assume that each of these 30 songs was shared 1000 times. Now, that number is extremely high - most people on P2P networks don't share a track with nearly that many other people. But it's not out of the question, so again, we'll choose a number that favors the RIAA.
30 songs x 1000 downloads each x $0.69 per download = $20,700.00. So, actual damages would be about twenty thousand dollars. And that's the maximum that he would have had to pay, the number that favors the RIAA the most.
Which means the awarded damages are over 32 times the actual damages.
This is pretty clearly unconstitutionally excessive, in my opinion. Gertner got it right the first time.
THE RIAA HAS NOTHING TO DO WITH THE COLLECTION OF PERFORMANCE ROYALTIES!
You are absolutely, 100% wrong on this point. The "Performance Rights Act" stipulates that royalties get paid to performing artists, not songwriters. This is in addition to the rates paid to songwriters and publishers.
So the PRO's (BMI, ASCAP, and SESAC) are the ones who have nothing to do with these bills. Those entities those that hold the copyright on the underlying compositions. They do not represent those that hold the copyright on the sound recordings.
If this bill passes, the PRO'S get no extra money at all. All the money goes to the RIAA clients.
1) never proven, 2) misstatements of fact, or 3) not reasons to believe ANYTHING is "not OK," piracy or otherwise.
You know, even though it's against my better judgement, I'm going to expound on those things.
it's illegal
You know very well that Mike has said, repeatedly, that piracy is illegal.
Still, "it's illegal" may be a reason not to do something. But it is never a reason to believe that thing is "not OK." An example is plagiarism, which is not illegal in any way, but nobody believes it's OK. Another is prohibition: according to your view, you would have to believe drinking is "not OK" until 1933, but be "pro-drinking" afterwards. Obviously this is ridiculous.
This is: 3) not a reason to believe ANYTHING is "not OK."
the people engaging in it are violating the content creator's rights
If the people engaging in it are not "ignoring the wishes of content creators," then they are not violating the content creator's rights. In fact, if the content creator still holds the copyright, they are not even engaging in piracy.
More to the point: The only right that exists in the U.S. is the right of Congress (as representatives of the public will) to enact copyright law to promote the progress. Artists and publishers don't have any innate copyrights: "The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings... Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given." So, for example, if the public (through Congress) decides that non-commercial file sharing should be legal, or that copyright lengths should be cut in half, nobody's "rights" would be violated.
I guess that means the Constitution, Congress, and the Supreme Court also believe "piracy is OK."
But even if copyright didn't exist at all, Mike would still be against piracy. Because it is against the "wishes" of the content creators. You don't need copyright to have "wishes," and if you obeyed those wishes, you wouldn't pirate even if it were legal. So Mike's position is much more against piracy than someone who is against piracy merely because it's "violating the content creator's rights."
This is: 2) a misstatement of fact.
the assignees of the content creators don't like it and are having their rights violated too
So, let's say a musician says publicly that it's OK to "pirate" their music. But their label (the assignee) is against it. If you say that it's OK to pirate that musician's music (which Mike has not), you're not saying "piracy is OK," you're being pro-artist.
This is: 2) a misstatement of fact.
that it hurts people
I assume you're talking about such things as knockoff drugs - but that's not a piracy issue. Whether or not those drugs are harmful has nothing to do with whether they violate IP laws. Those drugs can be (and usually are) totally safe, but still violate IP laws. Conflating the two is totally dishonest.
This is: 2) a misstatement of fact.
causes harm to the economy
No reliable study has ever shown that piracy harms the economy. It's possible that piracy harms a specific industry (and even here, there's no proof - as even the GAO made clear). But that doesn't mean that the overall economy is harmed. For example: Say, for the sake of argument, that piracy caused a record store's demise. But where that record store once stood, there's now a Best Buy. Best Buy hires at least as many people as a record store, and pays them wages that are at least as good (to say the least). The net loss to the economy is zero.
Furthermore, as Mike has repeatedly shown, those areas of the economy that do not depend on IP, are much stronger and grow much faster than those that do.
This is: 1) never proven (bordering on 2) a misstatement of fact).
Furthermore, this is also: 3) not a reason to believe ANYTHING is "not OK." That would mean that something that is good for the economy is automatically OK, which is not a morally defendable position. It might be better for publishers' incomes if we outlaw public libraries, but that doesn't mean shutting down libraries is OK.
It's no wonder Mike does not give these as reasons for thinking piracy is not OK. They are indefensible. If you depended upon these reasons for your beliefs, you would be forced to change your beliefs.
1) never proven, 2) misstatements of fact, or 3) not reasons to believe ANYTHING is "not OK," piracy or otherwise.
News flash: It is possible to believe none of those things, AND STILL BELIEVE PIRACY IS NOT OK.
You know, even though it's against my better judgement, I'm going to expound on those things.
it's illegal
You know very well that Mike has said, repeatedly, that piracy is illegal.
Still, "it's illegal" may be a reason not to do something. But it is never a reason to believe that thing is "not OK." An example is plagiarism, which is not illegal in any way, but nobody believes it's OK. Another is prohibition: according to your view, you would have to believe drinking is "not OK" until 1933, but be "pro-drinking" afterwards. Obviously this is ridiculous.
This is: 3) not a reason to believe ANYTHING is "not OK."
the people engaging in it are violating the content creator's rights
If the people engaging in it are not "ignoring the wishes of content creators," then they are not violating the content creator's rights. In fact, if the content creator still holds the copyright, they are not even engaging in piracy.
More to the point: The only right that exists in the U.S. is the right of Congress (as representatives of the public will) to enact copyright law to promote the progress. Artists and publishers don't have any innate copyrights: "The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings... Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given." So, for example, if the public (through Congress) decides that non-commercial file sharing should be legal, or that copyright lengths should be cut in half, nobody's "rights" would be violated.
I guess that means the Constitution, Congress, and the Supreme Court also believe "piracy is OK."
But even if copyright didn't exist at all, Mike would still be against piracy. Because it is against the "wishes" of the content creators. You don't need copyright to have "wishes," and if you obeyed those wishes, you wouldn't pirate even if it were legal. So Mike's position is much more against piracy than someone who is against piracy merely because it's "violating the content creator's rights."
This is: 2) a misstatement of fact.
the assignees of the content creators don't like it and are having their rights violated too
So, let's say a musician says publicly that it's OK to "pirate" their music. But their label (the assignee) is against it. If you say that it's OK to pirate that musician's music (which Mike has not), you're not saying "piracy is OK," you're being pro-artist.
This is: 2) a misstatement of fact.
that it hurts people
I assume you're talking about such things as knockoff drugs - but that's not a piracy issue. Whether or not those drugs are harmful has nothing to do with whether they violate IP laws. Those drugs can be (and usually are) totally safe, but still violate IP laws. Conflating the two is totally dishonest.
This is: 2) a misstatement of fact.
causes harm to the economy
No reliable study has ever shown that piracy harms the economy. It's possible that piracy harms a specific industry (and even here, there's no proof - as even the GAO made clear). But that doesn't mean that the overall economy is harmed. For example: Say, for the sake of argument, that piracy caused a record store's demise. But where that record store once stood, there's now a Best Buy. Best Buy hires at least as many people as a record store, and pays them wages that are at least as good (to say the least). The net loss to the economy is zero.
Furthermore, as Mike has repeatedly shown, those areas of the economy that do not depend on IP, are much stronger and grow much faster than those that do.
This is: 1) never proven (bordering on 2) a misstatement of fact).
Furthermore, this is also: 3) not a reason to believe ANYTHING is "not OK." That would mean that something that is good for the economy is automatically OK, which is not a morally defendable position. It might be better for publishers' incomes if we outlaw public libraries, but that doesn't mean shutting down libraries is OK.
It's no wonder Mike does not give these as reasons for thinking piracy is not OK. They are indefensible.
And all the other possible reasons that people think piracy is not OK
...are either 1) never proven, 2) misstatements of fact, or 3) not reasons to believe ANYTHING is "not OK," piracy or otherwise.
News flash: It is possible to believe none of those things, AND STILL BELIEVE PIRACY IS NOT OK.
The ONLY thing you have proven is that he doesn't agree with YOU. That's not believing that "piracy is fine and dandy." It's not even close. It's not even on the same planet as being close.
It's the sort of stupid, manipulative binary thinking that I've come to expect from you.
Thanks for clearing things up
Indeed, he did. He "cleared up" that he was absolutely, 100% right about you.
What it says about you is terrible, terrible things. You deliberately lied. You are a liar and a manipulator. You'll say anything, no matter how baseless or idiotic. Anything. And when challenged by me or others on your posts, you run away or only superficially respond. Just like a fake. I think you're the most despicable person in the IP debate. I think you're a total fake, and I think you know it.
I think the party that streams the video is also directly violating the public performance right. Read the video booth cases
They are not. Re-read the Aveco ruling:
[U]nder the Act Aveco's customers are the ones performing the works, for it is they who actually place the video cassette in the video cassette player and operate the controls. [...] However, if there is a public performance, Aveco may still be responsible as an infringer even though it does not actually operate the video cassette players. In granting copyright owners the exclusive rights to "authorize" public performances, Congress intended "to avoid any questions as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting [that copy] to others for purposes of an unauthorized public performance." In our opinion, this rationale applies equally to the person who knowingly makes available other requisites of a public performance. Accordingly, we agree with the district court that Aveco, by enabling its customers to perform the video cassettes in the viewing rooms, authorizes the performances.
The performances of Producers' motion pictures at Aveco's stores infringe their copyrights, however, only if they are "public." [...] We recently parsed this definition in Redd Horne, a case similar to the one at bar. [...] The court then concluded that the performances were occurring at a place open to the public, which it found to be the entire store, including the viewing rooms. Nevertheless, Aveco asserts that factual differences between Maxwell's stores and its own require a different result in this case. [...] We disagree.
It does not apply to anyone who merely views the stream unless they view that stream "at a place open to the public." But even here, it is not the viewers who are violating copyright, it is the person who unlawfully "authorizes the performances" - in this case, Aveco.
So, this would apply to the original uploader; it might also apply to the site that hosts the video stream. But it does not apply to anyone (website or individual) who merely provides a link to that stream. The linkers do not "acquire a copy" (authorized or not) of the work. They do not "rent a copy" of the work (even by analogy). They do not "make available" any kind of performance, since they do not have any control over the availability of videos on the streaming host. They do not provide "viewing rooms," nor anything remotely like them (see Posner's distinction between myVidster and Aimster). They do not have the ability to "authorize" anything, lawfully or not.
I think your definition of public performance is too narrow.
Re-read the House report:
Thus, for example: a [singer] is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set. Although any act by which the initial performance or display is transmitted, repeated, or made to recur would itself be a 'performance' or 'display' under the bill, it would not be actionable as an infringement unless it were done 'publicly'[.]
Merely providing a link is not "transmitting" the initial performance. Posner makes this very clear: "listing plays and giving the name and address of the theaters where they are being performed [...] is not 'transmitting or communicating' them. [...] To call the provision of contact information transmission or communication [...] would blur the distinction between direct and contributory infringement[.]"
I think we can both agree that providing is link is nothing like singing a song, so that leaves the person who "plays" the performance. Unless the person who "plays" "the initial performance" "by turning on a receiving set" "communicates the performance" "publicly," "it would not be actionable as an infringement." (It is pretty clear that they are talking about things like playing a TV in your bar.)
In this case, the person "turning on the receiving set" would be the person who actually initiated the playback of that performance, e.g. by following the link, then pressing the "play" icon on a Web player. In other words, the viewer of the stream. Unless that viewer is authorizing the transmission of the video stream to the public, he is not infringing on the public performance right - in which case, he is not committing copyright infringement at all.
So, someone who "encourages or assists" that viewer would not even be liable for contributory infringement, since no infringement occurs. The only time they could be liable for contributory infringement would be if they encouraged or assisted the person who authorized the stream - according to Posner, the original uploader.
This is exactly why myVidster was not liable for any kind of infringement, direct or otherwise.
Thanks. Just read it. It is basically a restatement of the Complaint that you and I linked to.
Neither the Complaint nor the Affidavit actually say that anyone downloaded anything. They use the phrase "downloaded or streamed" (they do not differentiate). And the only evidence of infringement that the government lists in the Affidavit, is "video recordings of the TVShack websites and movies streamed from those websites."
Its description of the evidence is also inaccurate, because the Affidavit itself says that these were links to "cyberlockers." As a matter of law, the videos were not streamed from "the TVShack websites," but from the "cyberlockers."
So, even if the infringement is criminal, it is only an infringement of the public performance right. That is not unlawful at all unless the it was done for profit, and even then it can only be a misdemeanor. And since TVShack is not even alleged to have done anything other than link to infringing streams (willfully or not), the most it can be guilty of is aiding and abetting a misdemeanor.
It's enough that the property is intended to be used for crime, so they don't have to show that it was actually used for crime.
So they must prove a "substantial connection" between the domain name and the direct, willful infringement of the copying and distribution rights, for profit. That is:
the domain name itself must have been intended to be used to facilitate the original upload of the files to third-party websites;
the domain name itself must have been intended to be used to facilitate the upload to third-party websites, where the works can be downloaded, not merely streamed;
the domain name itself must have been intended to be used to facilitate an upload that was done "willfully" by the uploader; and
Unless all these conditions are met, they can't show a substantial connection between the domain name and criminal infringement.
All that, and show that the ex parte takedown of an entire domain is not unconstitutional under the First Amendment. I'd say the DOJ has their work cut out for them.
You have provided several quotes, but most apply to the reproduction/distribution rights, and not the public performance right.
Posner began his analysis with the right to prevent copying, so it is apropos. Under his analysis, someone who watches or links to a stream does not infringe on the copying or distribution rights at all. That leaves the public performance right. And unless you are the "transmitter" of the stream, as defined in 17 USC 101, you are not performing the work publicly, so you are not infringing on the public performance right granted in 17 USC 106(4).
Nope. The second interpretation is public performance = upload + link + stream, exactly as I said. Posner says:
And here, you reproduce a Posner quote that explicitly says you're incorrect.
He says "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." Shortened: "Public performance happens when viewing begins." That's almost exactly what he said earlier in the ruling: "The second interpretation - the performance occurs when the video is viewed..." And it's how he actually defined the second interpretation: "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.'"
It only makes a difference because, prior to this point, the link played no role whatsoever in the transmission of the content. His first interpretation, that infringement happens after uploading but prior to anyone viewing the content, is "hopeless for Flava" - precisely because posting a link is not "contributing to the decision of someone to upload a Flava video to the Internet." He is clearly saying that the uploader (only) is the infringer under the first interpretation.
The next sentence says, explicitly, that "the video uploader is responsible for the transmitting." This means that under the second interpretation of "public performance," it is again the uploader who is the (direct) infringer. In contrast, myVidster's links could only be "assisting," "facilitating," or "contributing to" the infringement.
He is very clear (or at least as clear as Posner can get). In both cases, the uploader is the one infringing on the public performance right. myVidster's linking can only be secondary infringement at worst, and only if you accept the second interpretation of "public performance;" under the first interpretation, it is not infringement at all. There is absolutely no question about this.
In fact, the alternative is completely nonsensical. If he literally meant that "uploading plus bookmarking a video is a public performance," it would mean that some guy could upload Flava's videos to a streaming site, on which the video is publicly available, but he is not guilty of direct infringement until he posts a link to it.
The only question is whether an individual becomes an infringer of the public performance right, merely by posting a link on myVidster to a video uploaded by someone else. Posner does not address this question directly. But if the link poster can be an infringer, he can only be a secondary infringer. In no case can posting a link be a direct infringement of the public performance right, because only one who "transmits" the work can be an infringer. Posner says outright that a link cannot be considered a "transmission;" at worst, it can only facilitate a "transmission."
have button to be able to collapse a whole thread or sub-thread
I wholeheartedly agree with this, but I don't know how easy that would be to implement. (It's remarkable how much coding is necessary for even the simplest things.)
p.s. I just noticed the "Show all comments... (etc)" drop-down in the upper right corner of the comments. Is this new, or do I need to get my eyes checked? Either way, I like it.
As expected, the DOJ claims it is a "'linking' website," that links to "first-run and other movies for streaming." All the links were user-generated, and the actual content was stored on third-party sites.
I also recognize some of those third-party sites, and as far as I know, they don't do downloads, only streams. (This is important, since amazingly enough, the complaint does not differentiate between the two.)
The seventh quote says that myVidster is not the party directly causing the infringement of the public performance right.
No. It says that "the provision of contact information" is not "transmission or communication." Thus, it is not infringing on the "public performance" right from 17 USC 106(4).
I also left out this quote:
But if the public performance is [the second interpretation], 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.
By the way: regarding performance rights, it is a matter of statutory law that viewing a "public performance" is not an infringement of copyright. 17 USC 106(4) only grants the exclusive right "to transmit or otherwise communicate a performance of the work to the public" (in this context).
The only person who can possibly infringe on that right is the one who "transmits" the work. And, as Posner makes very clear, "the video uploader is responsible for the transmitting;" and not one who (only) provides "contact information," i.e. a link (from the quote above).
That's under the second interpretation. According to Posner, "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[.]"
He's very clear on this point. The only direct infringer is the uploader.
O'Dwyer is not even being charged with misdemeanor infringement.
He's being charged with a lot of things, but that doesn't mean the charges have merit.
To be honest, though, I haven't been able to track down the actual indictment, just the seizure order. The charges in the seizure order certainly wouldn't support anything more than aiding and abetting a misdemeanor. If you have a link to the full indictment, I'd love to read it.
Anyway, this story is about Rojadirecta, and I have read every document in that case (that I know about).
There's no criminal charges in Rojadirecta, so the only issue is whether the domain names were used or intended to be used to commit criminal infringement.
The government has changed its story with every court filing. That Rojadirecta was a direct infringer was the basis for the seizure order.
It's also worth noting that the government has not identified a single instance of criminal infringement that occurred anywhere - neither on Rojadirecta's site, nor on any site linked to from Rojadirecta.
And, once again, Rojadirecta only linked to streaming content, so the only criminal activity they possibly could have linked to would only be a misdemeanor under U.S. law.
(1) public performance = upload + link (what he says is the first interpretation: "uploading plus bookmarking a video is a public performance")
Yes, but he was only contemplating situations where it is the uploader who provided a link to myVidster. It's clear that what constitutes (direct) infringement is the uploading, not the linking. I provided numerous quotes in my previous comment.
(2) public performance = upload + link + stream (what he says is the second interpretation: "the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s computer")
You'll note that the word "link" is left out of this interpretation. More accurately, it would be "(2) public performance = upload + stream." Neither the link, nor myVidster's site, are a direct part of the actual performance. The rest of the ruling is contemplating whether a link can be facilitating that performance.
Posner did not say that only the uploader is the violator of the public performance right. Can you point me to the part that you think says that?
The quotes are in the comment above. Most of them were taken from places where he was talking, specifically, about the public performance right.
At one point, he says:
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.
Here, he was using interpretation (2), which necessetates someone viewing the content for an infringement of the "public performance" right to take place. And he was specifically talking about the the role of pecuniary interest in secondary infringement. Here is the quote in context:
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. [...] 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."
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.
Putting it all in context, he's determining "whether myVidster’s bookmarking service is actually contributing significantly to the unauthorized performance of Flava’s copyrighted works by infringers who transmit copyrighted works to myVidster’s visitors."
Regardless, he explicitly said that "the video uploader is responsible for the transmitting." There is not one time where he says that users who merely provide a link to myVidster (without uploading) are directly infringing. (In fact, he says nothing about those kinds of users at all.)
Also notice how the determination is whether myVidster's link is "assisting," "facilitating," "providing support services," or "contributes to" the performance. These are all forms of secondary, not direct, infringement. There's no suggestion anywhere in the ruling that the link is actually part of the performance itself, or that a link could possibly be direct infringement; he says explicitly that the uploader is responsible.
You said: "Under Posner's "performance by uploading" interpretation, merely providing a link to streaming content is not infringement at all."
That is not correct. Posner says that uploading + link is a public performance under the "performance by uploading" interpretation.
Upon re-reading your comment, I think I understand better what you're saying.
I was talking about myVidster providing a link to infringing content. In that situation, you are wrong: in no case is myVidster a direct infringer.
You may have been saying, however, that a user (not myVidster) who merely provides a link (and doesn't upload the video) may be guilty of infringement.
In fact, Posner does not say this. He says that uploading AND providing a link would be direct infringement. But the opinion does not even contemplate the liability of a user who does not upload the video, but does provide a link to that video to myVidster.
Regardless, the ruling makes clear that liability for direct infringement is limited solely to the uploader:
[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? [...] 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." His bypassing Flava’s pay wall by viewing the uploaded copy [...] is not copyright infringement. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet. [...]
The infringers are the uploaders of copyrighted work. [...]
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.[...]
The direct infringers in this case are the uploaders [...]
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 [...]
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. [...] 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.
[Regarding myVidster's discontinued backup service for premium members:] Actually, though, we’ve seen that the members were not the infringers - the third parties who uploaded Flava videos to the Internet were the infringers to whose activities myVidster is alleged to have been contributing.
So, a user who merely provides a link cannot be guilty of direct infringement. But whether or not they can be guilty of contributory infringement is not contemplated in this ruling. So I was wrong to say they are not infringement at all.
You said merely providing links could be considered direct infringement by Posner. You were wrong.
Judge Posner gives two interpretations of what constitutes a public performance:
(1) public performance = upload + link
(2) public performance = upload + link + stream
That's not what Posner said.
The question was whether the "performance" happened:
(1) when someone uploaded the video to the third-party site, or
(2) when (a different) someone actually viewed the stream uploaded to the third-party site.
In both cases, the uploader is the only (direct) infringer; the question is at what point the original uploader would be infringing. In neither case is the person viewing the video infringing.
myVidster could only be liable for secondary infringement, if:
(1) myVidster itself materially contributed to the original upload to the third-party site (in which case the links themselves are immaterial), or
(2) myVidster's links materially contributed to the viewing of the stream at the third-party site (in which case myVidster could avail itself of the DMCA safe harbors).
The question in (2) is not whether someone actually viewed the video using myVidster's link; it's whether that link, by itself, was "conduct that encourages or assists" the broadcast itself - whether the viewer wouldn't have streamed the content if that link wasn't there.
Your first long quote only concerns the reproduction and distribution rights, so it is irrelevant to the point I was making about the public performance right.
But it is relevant to a criminal case, like Rojadirecta or TVShack. Unless the direct infringement (by the uploader) was committed "for purposes of commercial advantage or private financial gain," criminal infringement only covers "reproduction or distribution," and not public performance. Even if it was committed for financial gain, infringement of the "public performance" rights is at most a misdemeanor. See 18 USC 2319(f)(2). And Posner said explicitly that "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."
It's also worth noting that "contributory infringement" is found nowhere in the copyright statutes. It is, as Posner reiterated, a legal construct arising out of civil law. The only way Rojadirecta or TVShack would be criminally guilty is under the "aiding and abetting" statutes - but those are completely different than contributory infringement in civil cases, and raise a far higher bar to clear.
So, to sum up: the most Rojadirecta or TVShack could possibly be guilty of, is aiding and abetting a misdemeanor. And that's only if the original uploaders were doing it for financial gain; and only if Rojadirecta or TVShack could have been shown to aid and abett those original uploaders.
Regardless, do you agree that the myVidster situation is quite different from the Rojadirecta or TVShack cases (where there was encouragement)?
Even if we pretend Rojadirecta or TVShack are civil cases, I do not see much difference, since the government did not show such "encouragement."
Even if they did, Rojadirecta and TVShack would be guilty of contributory infringement. In no case could they be guilty of direct infringement.
He said that merely providing links might be direct infringement.
That is exactly the opposite of what he said:
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.” […]
As the record stands […], 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. […]
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, […] a form of contributory infringement, […] that emphasizes intent over consequence.
Things become more convoluted when the "public performance" aspect kicks in. But even here, myVidster would not be a direct infringer, but a contributory infringer:
Remember that the Copyright Act also makes it unlawful […] “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.” 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." […]
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 bookmarked 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 NewYorker is not performing them. It is not “transmitting or communicating” them. […]
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.
So, you're absolutely wrong. In no case could merely providing links to content ever be considered direct infringement. Under Posner's "performance by uploading" interpretation, merely providing a link to streaming content is not infringement at all. (Incidentally, that is the interpretation that is controlling in both the Ninth and Second Circuits.)
On the post: District Court: $675,000 For Non-commercially Sharing 30 Songs Is Perfectly Reasonable
Re: Re: Re: Joel's "Enormous" License
I may have "failed" in this way myself. I knew that he was using Kazaa, but I assumed that it used a protocol that is similar to torrents.
If it was a literal "peer-to-peer" protocol, where each user only copies a file from one other user, then he would probably be responsible for far fewer infringements. Given the upload speeds that existed before 2003, sharing even a single file with 1000 individuals would take years.
In fact, the P2P protocol that Kazaa used is called FastTrack - the same protocol used by Grokster and Morpheus. It is not a one-to-one P2P protocol, but is in fact closer to how torrents work. That is, each file may have thousands of users downloading, and also thousands of users uploading. Those users are connected via "supernodes," which are (AFAIK) a centralized equivalent of "swarms."
At least, that's what I've been able to work out. The FastTrack protocol details are not exactly helpful in this matter.
In any case, there's no way in Hell that Joel ever shared each file more than 1000 times. It is likely that this figure is much too high.
On the post: District Court: $675,000 For Non-commercially Sharing 30 Songs Is Perfectly Reasonable
Re: Re: Joel's "Enormous" License
When Joel chose to seed those songs, to give them away online, he started a chain of events, and made it possible for others to do the same.
There's no evidence (and I don't believe that it was even alleged) that Joel was the initial source of those songs. In fact, the lawsuit alleges that he "downloaded" those songs. He was simply another "step down the line."
If you're counting all users in all swarms when figuring damages, then you can only count these users if you sue the initial source of the files. In this case, you wouldn't be able to declare any actual damages if you're suing anyone "down the line." Otherwise, you're counting a single infringement hundreds of times - it's not even remotely close to calculating actual damages.
If you are suing someone "down the line" (like Joel), you must do the numerically correct thing, and only count the number of infringements that the seeder actually participates in.
Even here, that number is larger than it actually should be. If a swarm has 100 seeders and 400 leechers, then there is a grand total of 500 infringements. So, the actual damages must be calculated using those 500 infringements. If you sue one of those 100 seeders, then each seeder would be responsible for five infringements each.
In other words, the 1000 number is even higher than it really should be, since I counted each person in his swarm as a leecher (and not a seeder themselves). I was being generous to the RIAA.
So, basically, it's you who fail.
On the post: District Court: $675,000 For Non-commercially Sharing 30 Songs Is Perfectly Reasonable
Joel's "Enormous" License
What, seriously?
Let's try to actually figure out what the licensing deal would cost.
First, we'll assume the iTunes model - which is one of the highest out there, so it favors the RIAA. For a $.99 MP3, iTunes takes $.30, so the remainder is $.69 per track.
Next, we'll assume that each of these 30 songs was shared 1000 times. Now, that number is extremely high - most people on P2P networks don't share a track with nearly that many other people. But it's not out of the question, so again, we'll choose a number that favors the RIAA.
30 songs x 1000 downloads each x $0.69 per download = $20,700.00. So, actual damages would be about twenty thousand dollars. And that's the maximum that he would have had to pay, the number that favors the RIAA the most.
Which means the awarded damages are over 32 times the actual damages.
This is pretty clearly unconstitutionally excessive, in my opinion. Gertner got it right the first time.
On the post: Rep. Nadler Proposes The RIAA Bailout Act Of 2012
Re:
Yep:
http://www.theonion.com/articles/riaa-sues-radio-stations-for-giving-away-free-mus i,48/
On the post: Rep. Nadler Proposes The RIAA Bailout Act Of 2012
Re: Re:
You are absolutely, 100% wrong on this point. The "Performance Rights Act" stipulates that royalties get paid to performing artists, not songwriters. This is in addition to the rates paid to songwriters and publishers.
So the PRO's (BMI, ASCAP, and SESAC) are the ones who have nothing to do with these bills. Those entities those that hold the copyright on the underlying compositions. They do not represent those that hold the copyright on the sound recordings.
If this bill passes, the PRO'S get no extra money at all. All the money goes to the RIAA clients.
Grant Muller has a pretty decent take on it, here:
http://grantmuller.com/making-sense-of-the-performance-rights-act/
On the post: Ubisoft Realizing That Perhaps 'Pirate' Users Are Really Just Like 'Free To Play' Users Who Don't Pay
Re:
To troll properly, you must refer to Google as "Big Search."
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Re: Re: Re: Re: Re: Re: Re:
You know, even though it's against my better judgement, I'm going to expound on those things.
it's illegal
You know very well that Mike has said, repeatedly, that piracy is illegal.
Still, "it's illegal" may be a reason not to do something. But it is never a reason to believe that thing is "not OK." An example is plagiarism, which is not illegal in any way, but nobody believes it's OK. Another is prohibition: according to your view, you would have to believe drinking is "not OK" until 1933, but be "pro-drinking" afterwards. Obviously this is ridiculous.
This is: 3) not a reason to believe ANYTHING is "not OK."
the people engaging in it are violating the content creator's rights
If the people engaging in it are not "ignoring the wishes of content creators," then they are not violating the content creator's rights. In fact, if the content creator still holds the copyright, they are not even engaging in piracy.
More to the point: The only right that exists in the U.S. is the right of Congress (as representatives of the public will) to enact copyright law to promote the progress. Artists and publishers don't have any innate copyrights: "The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings... Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given." So, for example, if the public (through Congress) decides that non-commercial file sharing should be legal, or that copyright lengths should be cut in half, nobody's "rights" would be violated.
I guess that means the Constitution, Congress, and the Supreme Court also believe "piracy is OK."
But even if copyright didn't exist at all, Mike would still be against piracy. Because it is against the "wishes" of the content creators. You don't need copyright to have "wishes," and if you obeyed those wishes, you wouldn't pirate even if it were legal. So Mike's position is much more against piracy than someone who is against piracy merely because it's "violating the content creator's rights."
This is: 2) a misstatement of fact.
the assignees of the content creators don't like it and are having their rights violated too
So, let's say a musician says publicly that it's OK to "pirate" their music. But their label (the assignee) is against it. If you say that it's OK to pirate that musician's music (which Mike has not), you're not saying "piracy is OK," you're being pro-artist.
This is: 2) a misstatement of fact.
that it hurts people
I assume you're talking about such things as knockoff drugs - but that's not a piracy issue. Whether or not those drugs are harmful has nothing to do with whether they violate IP laws. Those drugs can be (and usually are) totally safe, but still violate IP laws. Conflating the two is totally dishonest.
This is: 2) a misstatement of fact.
causes harm to the economy
No reliable study has ever shown that piracy harms the economy. It's possible that piracy harms a specific industry (and even here, there's no proof - as even the GAO made clear). But that doesn't mean that the overall economy is harmed. For example: Say, for the sake of argument, that piracy caused a record store's demise. But where that record store once stood, there's now a Best Buy. Best Buy hires at least as many people as a record store, and pays them wages that are at least as good (to say the least). The net loss to the economy is zero.
Furthermore, as Mike has repeatedly shown, those areas of the economy that do not depend on IP, are much stronger and grow much faster than those that do.
This is: 1) never proven (bordering on 2) a misstatement of fact).
Furthermore, this is also: 3) not a reason to believe ANYTHING is "not OK." That would mean that something that is good for the economy is automatically OK, which is not a morally defendable position. It might be better for publishers' incomes if we outlaw public libraries, but that doesn't mean shutting down libraries is OK.
It's no wonder Mike does not give these as reasons for thinking piracy is not OK. They are indefensible. If you depended upon these reasons for your beliefs, you would be forced to change your beliefs.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Re: Re: Re: Re: Re: Re: Re:
News flash: It is possible to believe none of those things, AND STILL BELIEVE PIRACY IS NOT OK.
You know, even though it's against my better judgement, I'm going to expound on those things.
it's illegal
You know very well that Mike has said, repeatedly, that piracy is illegal.
Still, "it's illegal" may be a reason not to do something. But it is never a reason to believe that thing is "not OK." An example is plagiarism, which is not illegal in any way, but nobody believes it's OK. Another is prohibition: according to your view, you would have to believe drinking is "not OK" until 1933, but be "pro-drinking" afterwards. Obviously this is ridiculous.
This is: 3) not a reason to believe ANYTHING is "not OK."
the people engaging in it are violating the content creator's rights
If the people engaging in it are not "ignoring the wishes of content creators," then they are not violating the content creator's rights. In fact, if the content creator still holds the copyright, they are not even engaging in piracy.
More to the point: The only right that exists in the U.S. is the right of Congress (as representatives of the public will) to enact copyright law to promote the progress. Artists and publishers don't have any innate copyrights: "The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings... Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given." So, for example, if the public (through Congress) decides that non-commercial file sharing should be legal, or that copyright lengths should be cut in half, nobody's "rights" would be violated.
I guess that means the Constitution, Congress, and the Supreme Court also believe "piracy is OK."
But even if copyright didn't exist at all, Mike would still be against piracy. Because it is against the "wishes" of the content creators. You don't need copyright to have "wishes," and if you obeyed those wishes, you wouldn't pirate even if it were legal. So Mike's position is much more against piracy than someone who is against piracy merely because it's "violating the content creator's rights."
This is: 2) a misstatement of fact.
the assignees of the content creators don't like it and are having their rights violated too
So, let's say a musician says publicly that it's OK to "pirate" their music. But their label (the assignee) is against it. If you say that it's OK to pirate that musician's music (which Mike has not), you're not saying "piracy is OK," you're being pro-artist.
This is: 2) a misstatement of fact.
that it hurts people
I assume you're talking about such things as knockoff drugs - but that's not a piracy issue. Whether or not those drugs are harmful has nothing to do with whether they violate IP laws. Those drugs can be (and usually are) totally safe, but still violate IP laws. Conflating the two is totally dishonest.
This is: 2) a misstatement of fact.
causes harm to the economy
No reliable study has ever shown that piracy harms the economy. It's possible that piracy harms a specific industry (and even here, there's no proof - as even the GAO made clear). But that doesn't mean that the overall economy is harmed. For example: Say, for the sake of argument, that piracy caused a record store's demise. But where that record store once stood, there's now a Best Buy. Best Buy hires at least as many people as a record store, and pays them wages that are at least as good (to say the least). The net loss to the economy is zero.
Furthermore, as Mike has repeatedly shown, those areas of the economy that do not depend on IP, are much stronger and grow much faster than those that do.
This is: 1) never proven (bordering on 2) a misstatement of fact).
Furthermore, this is also: 3) not a reason to believe ANYTHING is "not OK." That would mean that something that is good for the economy is automatically OK, which is not a morally defendable position. It might be better for publishers' incomes if we outlaw public libraries, but that doesn't mean shutting down libraries is OK.
It's no wonder Mike does not give these as reasons for thinking piracy is not OK. They are indefensible.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Re: Re: Re: Re: Re: Re: Re:
For example:
And all the other possible reasons that people think piracy is not OK
...are either 1) never proven, 2) misstatements of fact, or 3) not reasons to believe ANYTHING is "not OK," piracy or otherwise.
News flash: It is possible to believe none of those things, AND STILL BELIEVE PIRACY IS NOT OK.
The ONLY thing you have proven is that he doesn't agree with YOU. That's not believing that "piracy is fine and dandy." It's not even close. It's not even on the same planet as being close.
It's the sort of stupid, manipulative binary thinking that I've come to expect from you.
Thanks for clearing things up
Indeed, he did. He "cleared up" that he was absolutely, 100% right about you.
What it says about you is terrible, terrible things. You deliberately lied. You are a liar and a manipulator. You'll say anything, no matter how baseless or idiotic. Anything. And when challenged by me or others on your posts, you run away or only superficially respond. Just like a fake. I think you're the most despicable person in the IP debate. I think you're a total fake, and I think you know it.
On the post: Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
Re: Re: Re: Re: Re:
They are not. Re-read the Aveco ruling:
It does not apply to anyone who merely views the stream unless they view that stream "at a place open to the public." But even here, it is not the viewers who are violating copyright, it is the person who unlawfully "authorizes the performances" - in this case, Aveco.
So, this would apply to the original uploader; it might also apply to the site that hosts the video stream. But it does not apply to anyone (website or individual) who merely provides a link to that stream. The linkers do not "acquire a copy" (authorized or not) of the work. They do not "rent a copy" of the work (even by analogy). They do not "make available" any kind of performance, since they do not have any control over the availability of videos on the streaming host. They do not provide "viewing rooms," nor anything remotely like them (see Posner's distinction between myVidster and Aimster). They do not have the ability to "authorize" anything, lawfully or not.
I think your definition of public performance is too narrow.
Re-read the House report:
Merely providing a link is not "transmitting" the initial performance. Posner makes this very clear: "listing plays and giving the name and address of the theaters where they are being performed [...] is not 'transmitting or communicating' them. [...] To call the provision of contact information transmission or communication [...] would blur the distinction between direct and contributory infringement[.]"
I think we can both agree that providing is link is nothing like singing a song, so that leaves the person who "plays" the performance. Unless the person who "plays" "the initial performance" "by turning on a receiving set" "communicates the performance" "publicly," "it would not be actionable as an infringement." (It is pretty clear that they are talking about things like playing a TV in your bar.)
In this case, the person "turning on the receiving set" would be the person who actually initiated the playback of that performance, e.g. by following the link, then pressing the "play" icon on a Web player. In other words, the viewer of the stream. Unless that viewer is authorizing the transmission of the video stream to the public, he is not infringing on the public performance right - in which case, he is not committing copyright infringement at all.
So, someone who "encourages or assists" that viewer would not even be liable for contributory infringement, since no infringement occurs. The only time they could be liable for contributory infringement would be if they encouraged or assisted the person who authorized the stream - according to Posner, the original uploader.
This is exactly why myVidster was not liable for any kind of infringement, direct or otherwise.
On the post: Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
Re: Re: Re:
Thanks. Just read it. It is basically a restatement of the Complaint that you and I linked to.
Neither the Complaint nor the Affidavit actually say that anyone downloaded anything. They use the phrase "downloaded or streamed" (they do not differentiate). And the only evidence of infringement that the government lists in the Affidavit, is "video recordings of the TVShack websites and movies streamed from those websites."
Its description of the evidence is also inaccurate, because the Affidavit itself says that these were links to "cyberlockers." As a matter of law, the videos were not streamed from "the TVShack websites," but from the "cyberlockers."
So, even if the infringement is criminal, it is only an infringement of the public performance right. That is not unlawful at all unless the it was done for profit, and even then it can only be a misdemeanor. And since TVShack is not even alleged to have done anything other than link to infringing streams (willfully or not), the most it can be guilty of is aiding and abetting a misdemeanor.
It's enough that the property is intended to be used for crime, so they don't have to show that it was actually used for crime.
So they must prove a "substantial connection" between the domain name and the direct, willful infringement of the copying and distribution rights, for profit. That is:
Unless all these conditions are met, they can't show a substantial connection between the domain name and criminal infringement.
All that, and show that the ex parte takedown of an entire domain is not unconstitutional under the First Amendment. I'd say the DOJ has their work cut out for them.
You have provided several quotes, but most apply to the reproduction/distribution rights, and not the public performance right.
Posner began his analysis with the right to prevent copying, so it is apropos. Under his analysis, someone who watches or links to a stream does not infringe on the copying or distribution rights at all. That leaves the public performance right. And unless you are the "transmitter" of the stream, as defined in 17 USC 101, you are not performing the work publicly, so you are not infringing on the public performance right granted in 17 USC 106(4).
Nope. The second interpretation is public performance = upload + link + stream, exactly as I said. Posner says:
And here, you reproduce a Posner quote that explicitly says you're incorrect.
He says "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." Shortened: "Public performance happens when viewing begins." That's almost exactly what he said earlier in the ruling: "The second interpretation - the performance occurs when the video is viewed..." And it's how he actually defined the second interpretation: "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.'"
It only makes a difference because, prior to this point, the link played no role whatsoever in the transmission of the content. His first interpretation, that infringement happens after uploading but prior to anyone viewing the content, is "hopeless for Flava" - precisely because posting a link is not "contributing to the decision of someone to upload a Flava video to the Internet." He is clearly saying that the uploader (only) is the infringer under the first interpretation.
The next sentence says, explicitly, that "the video uploader is responsible for the transmitting." This means that under the second interpretation of "public performance," it is again the uploader who is the (direct) infringer. In contrast, myVidster's links could only be "assisting," "facilitating," or "contributing to" the infringement.
He is very clear (or at least as clear as Posner can get). In both cases, the uploader is the one infringing on the public performance right. myVidster's linking can only be secondary infringement at worst, and only if you accept the second interpretation of "public performance;" under the first interpretation, it is not infringement at all. There is absolutely no question about this.
In fact, the alternative is completely nonsensical. If he literally meant that "uploading plus bookmarking a video is a public performance," it would mean that some guy could upload Flava's videos to a streaming site, on which the video is publicly available, but he is not guilty of direct infringement until he posts a link to it.
The only question is whether an individual becomes an infringer of the public performance right, merely by posting a link on myVidster to a video uploaded by someone else. Posner does not address this question directly. But if the link poster can be an infringer, he can only be a secondary infringer. In no case can posting a link be a direct infringement of the public performance right, because only one who "transmits" the work can be an infringer. Posner says outright that a link cannot be considered a "transmission;" at worst, it can only facilitate a "transmission."
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Rollovers
On the post: First Word, Last Word And Letting Our Biggest Fans Help Shape The Conversation In Our Comments
Re: Re:
I wholeheartedly agree with this, but I don't know how easy that would be to implement. (It's remarkable how much coding is necessary for even the simplest things.)
p.s. I just noticed the "Show all comments... (etc)" drop-down in the upper right corner of the comments. Is this new, or do I need to get my eyes checked? Either way, I like it.
On the post: Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
Re: Re:
Found the complaint:
http://www.scribd.com/doc/100259020/U-S-v-O-Dwyer-SDNY-1-Sealed-Complaint
As expected, the DOJ claims it is a "'linking' website," that links to "first-run and other movies for streaming." All the links were user-generated, and the actual content was stored on third-party sites.
I also recognize some of those third-party sites, and as far as I know, they don't do downloads, only streams. (This is important, since amazingly enough, the complaint does not differentiate between the two.)
So, it's almost exactly like myVidster.
On the post: Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
Re: Re: Re: Re: Re: Re: Re: Re: Re:
No. It says that "the provision of contact information" is not "transmission or communication." Thus, it is not infringing on the "public performance" right from 17 USC 106(4).
I also left out this quote:
By the way: regarding performance rights, it is a matter of statutory law that viewing a "public performance" is not an infringement of copyright. 17 USC 106(4) only grants the exclusive right "to transmit or otherwise communicate a performance of the work to the public" (in this context).
The only person who can possibly infringe on that right is the one who "transmits" the work. And, as Posner makes very clear, "the video uploader is responsible for the transmitting;" and not one who (only) provides "contact information," i.e. a link (from the quote above).
That's under the second interpretation. According to Posner, "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[.]"
He's very clear on this point. The only direct infringer is the uploader.
On the post: Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
Re:
He's being charged with a lot of things, but that doesn't mean the charges have merit.
To be honest, though, I haven't been able to track down the actual indictment, just the seizure order. The charges in the seizure order certainly wouldn't support anything more than aiding and abetting a misdemeanor. If you have a link to the full indictment, I'd love to read it.
Anyway, this story is about Rojadirecta, and I have read every document in that case (that I know about).
There's no criminal charges in Rojadirecta, so the only issue is whether the domain names were used or intended to be used to commit criminal infringement.
The government has changed its story with every court filing. That Rojadirecta was a direct infringer was the basis for the seizure order.
It's also worth noting that the government has not identified a single instance of criminal infringement that occurred anywhere - neither on Rojadirecta's site, nor on any site linked to from Rojadirecta.
And, once again, Rojadirecta only linked to streaming content, so the only criminal activity they possibly could have linked to would only be a misdemeanor under U.S. law.
(1) public performance = upload + link (what he says is the first interpretation: "uploading plus bookmarking a video is a public performance")
Yes, but he was only contemplating situations where it is the uploader who provided a link to myVidster. It's clear that what constitutes (direct) infringement is the uploading, not the linking. I provided numerous quotes in my previous comment.
(2) public performance = upload + link + stream (what he says is the second interpretation: "the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s computer")
You'll note that the word "link" is left out of this interpretation. More accurately, it would be "(2) public performance = upload + stream." Neither the link, nor myVidster's site, are a direct part of the actual performance. The rest of the ruling is contemplating whether a link can be facilitating that performance.
Posner did not say that only the uploader is the violator of the public performance right. Can you point me to the part that you think says that?
The quotes are in the comment above. Most of them were taken from places where he was talking, specifically, about the public performance right.
At one point, he says:
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.
Here, he was using interpretation (2), which necessetates someone viewing the content for an infringement of the "public performance" right to take place. And he was specifically talking about the the role of pecuniary interest in secondary infringement. Here is the quote in context:
Putting it all in context, he's determining "whether myVidster’s bookmarking service is actually contributing significantly to the unauthorized performance of Flava’s copyrighted works by infringers who transmit copyrighted works to myVidster’s visitors."
Regardless, he explicitly said that "the video uploader is responsible for the transmitting." There is not one time where he says that users who merely provide a link to myVidster (without uploading) are directly infringing. (In fact, he says nothing about those kinds of users at all.)
Also notice how the determination is whether myVidster's link is "assisting," "facilitating," "providing support services," or "contributes to" the performance. These are all forms of secondary, not direct, infringement. There's no suggestion anywhere in the ruling that the link is actually part of the performance itself, or that a link could possibly be direct infringement; he says explicitly that the uploader is responsible.
On the post: Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
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That is not correct. Posner says that uploading + link is a public performance under the "performance by uploading" interpretation.
Upon re-reading your comment, I think I understand better what you're saying.
I was talking about myVidster providing a link to infringing content. In that situation, you are wrong: in no case is myVidster a direct infringer.
You may have been saying, however, that a user (not myVidster) who merely provides a link (and doesn't upload the video) may be guilty of infringement.
In fact, Posner does not say this. He says that uploading AND providing a link would be direct infringement. But the opinion does not even contemplate the liability of a user who does not upload the video, but does provide a link to that video to myVidster.
Regardless, the ruling makes clear that liability for direct infringement is limited solely to the uploader:
So, a user who merely provides a link cannot be guilty of direct infringement. But whether or not they can be guilty of contributory infringement is not contemplated in this ruling. So I was wrong to say they are not infringement at all.
On the post: Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
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You said merely providing links could be considered direct infringement by Posner. You were wrong.
Judge Posner gives two interpretations of what constitutes a public performance:
(1) public performance = upload + link
(2) public performance = upload + link + stream
That's not what Posner said.
The question was whether the "performance" happened:
(1) when someone uploaded the video to the third-party site, or
(2) when (a different) someone actually viewed the stream uploaded to the third-party site.
In both cases, the uploader is the only (direct) infringer; the question is at what point the original uploader would be infringing. In neither case is the person viewing the video infringing.
myVidster could only be liable for secondary infringement, if:
(1) myVidster itself materially contributed to the original upload to the third-party site (in which case the links themselves are immaterial), or
(2) myVidster's links materially contributed to the viewing of the stream at the third-party site (in which case myVidster could avail itself of the DMCA safe harbors).
The question in (2) is not whether someone actually viewed the video using myVidster's link; it's whether that link, by itself, was "conduct that encourages or assists" the broadcast itself - whether the viewer wouldn't have streamed the content if that link wasn't there.
Your first long quote only concerns the reproduction and distribution rights, so it is irrelevant to the point I was making about the public performance right.
But it is relevant to a criminal case, like Rojadirecta or TVShack. Unless the direct infringement (by the uploader) was committed "for purposes of commercial advantage or private financial gain," criminal infringement only covers "reproduction or distribution," and not public performance. Even if it was committed for financial gain, infringement of the "public performance" rights is at most a misdemeanor. See 18 USC 2319(f)(2). And Posner said explicitly that "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."
It's also worth noting that "contributory infringement" is found nowhere in the copyright statutes. It is, as Posner reiterated, a legal construct arising out of civil law. The only way Rojadirecta or TVShack would be criminally guilty is under the "aiding and abetting" statutes - but those are completely different than contributory infringement in civil cases, and raise a far higher bar to clear.
So, to sum up: the most Rojadirecta or TVShack could possibly be guilty of, is aiding and abetting a misdemeanor. And that's only if the original uploaders were doing it for financial gain; and only if Rojadirecta or TVShack could have been shown to aid and abett those original uploaders.
Regardless, do you agree that the myVidster situation is quite different from the Rojadirecta or TVShack cases (where there was encouragement)?
Even if we pretend Rojadirecta or TVShack are civil cases, I do not see much difference, since the government did not show such "encouragement."
Even if they did, Rojadirecta and TVShack would be guilty of contributory infringement. In no case could they be guilty of direct infringement.
On the post: Inexplicable: Jeff Price Pushed Out Of TuneCore, Despite Tremendous Success In Helping Artists
Not a good sign
I really hope that Jeff's leaving doesn't make TuneCore suck.
On the post: Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
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That is exactly the opposite of what he said:
Things become more convoluted when the "public performance" aspect kicks in. But even here, myVidster would not be a direct infringer, but a contributory infringer:
So, you're absolutely wrong. In no case could merely providing links to content ever be considered direct infringement. Under Posner's "performance by uploading" interpretation, merely providing a link to streaming content is not infringement at all. (Incidentally, that is the interpretation that is controlling in both the Ninth and Second Circuits.)
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