I'm curious: at what part of the linking process (which may be obscured from Twitter via a 3rd party link shortener) are they responsible for the storage of the infringing material?
I don't think there is a simple answer to your question, since you'd really have to analyze it on a case-by-case basis. The specifics would matter greatly.
If it's contributory infringement, it would have to be proved that Twitter either knew or should have known that the link was being used for infringing activity and then failed remove the link.
The reality is, Twitter is incentivized to take down any material they receive a notice for since that way they are completely immune from liability.
Re: Re: Re: Re: Re: Re: Re: Re: Links more generally
You are implying that someone can be guilty of intention to distribute, having posted a link, without actually being guilty of distribution.
They can.
You can post a link to infringing material--material that you did not distribute in the first place--and still be held liable for the infringement of other people who use your link to access the infringing material. It's called secondary or indirect liability.
So what part of copyright law does linking violate?
You're right that providing a link is not direct infringement, but there's more to it than that.
Services like Twitter fall under 17 U.S.C. 512(c), Information Residing on Systems or Networks at Direction of Users.
According to the statute, the service provider can be liable "for infringement of copyright by reason of the storage at the direction of the user" if they have either actual knowledge or apparent knowledge that the "material" or "an activity using the material" is infringing.
While the link itself is not infringing material, activity using that material, i.e., clicking on the link, can be infringing. If the activity using that material is infringing, then the service provider could potentially lose their safe harbor if they don't comply with the notice.
Not all links are the same though. Some links automatically start the download of the infringing material. Other links take you to a page where the infringing material is available. And other links take you to a page that has a link to another page where the infringing material is available. You get the idea.
I'll look up some caselaw on hyperlinks being the target of DMCA takedown notices and post what I find. Good topic.
Thank you, counselor. I don't deny that perhaps trademark law used to be only about confusion. I'm simply pointing out that Mike is not telling the truth when he says that trademark law is now only about confusion. Clearly that's not the case. His intentional misrepresentation, I suppose, is for the purpose of deceit and manipulation. Why else would he disregard and misstate the truth?
Faith-based means you assume something must be true, despite a lack of evidence.
Isn't that the equivalent to what I said?
"see what you want to see" = "assume something must be true"
"despite all the evidence to the contrary that's right before your nose" = "despite a lack of evidence"
And Mike, you're not fooling anyone by claiming that trademark law is only about confusion. Perhaps that used to be true, but it is disingenuous to pretend that that is now the case. You clearly are presenting trademark law as it used to be and/or how you think it should be. You are not presenting it as it actually is. You are consciously blurring the line between the two. That's called being a liar.
Just in this article, Mike said: "The lawsuit claimed that Wowwee's own websites acknowledged that the styling was modeled after Gibson's guitars, but apparently, at least some of those websites may not have actually been Wowwee's at all, but third parties, who were simply pushing people to Amazon affiliates or other sites. If that's the case, it calls into question certain aspects of the rest of Gibson's case as well."
He indicates that since there APPEARS to be a mistake, the rest of Gibson's case is suspect. There is no analysis of the rest of Gibson's case, just the faith-based insinuation of FUD. On top of that, he indicates that trademark law is in fact ONLY about confusion. This too is faith-based since it ignores the simple reality that trademark law is IN FACT about much more. It's not based in reality or logic, so it's faith-based. Simple.
Sure I do. It means that you see what you want to see despite all the evidence to the contrary that's right before your nose. Easy to spot from a distance. I see it in you quite frequently.
I am stating the basis of trademark law as originally designed. I will admit that certain trademark lawyers have expanded the meaning over time with things like dilution, but, yes, I believe that's a perversion of the point of trademark law above and beyond what is reasonable, and thus, an abuse of the law.
Regardless, you are NOT stating what the law actually is, even though you are PRETENDING to be doing exactly that. Your conscious decision to misrepresent the truth is noted.
The purpose of trademark law is to prevent consumer confusion. There is no indication that anyone here was confused.
That's a doozy... and a faith-based oversimplification. You clearly are stating your opinion of how you think the law should be, but you are presenting it like it's a description of how the law actually is. You frequently blur this line, and I assume it's intentionally done. I often see those who don't have the law on their side use this trick.
If we're going to talk of trademark's purpose, let's look to some authority:
The purpose underlying any trade-mark statute is twofold. One is to protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get. Secondly, where the owner of a trade-mark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats. This is the well-established rule of law protecting both the public and the trade-mark owner.
S.Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946).
Sixty-four years later, those words are still true. And by protecting trademarks, Congress hoped:
to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not.
Id., at 4.
Care to back up your assertion that trademark law is only about confusion?
The issue isn't to blame the tools providers for implementing such features, but to look more deeply at the state of copyright law today, where we're increasingly suffocating the real purpose of fair use, which was to allow such creativity, without first requiring permission. These filters don't understand fair use, so they assume anything that matches is infringement, and because of that, we all suffer.
Obviously there's another side to this that you failed to bring up: the good that comes from it. I think your analysis would be more complete and compelling if you at least acknowledged the putative benefits. Without this, it's impossible to follow you to your conclusion that "we all suffer." How did you determine that in the net, that's necessarily true?
So you are saying because the lawyers perhaps had a hard time ti figure out which sites were real and which sites were just affiliate sites, that the rest of their claims are suspect?
Desperate and whiny, that seems to be the TD trend this month.
I think it's just lazy. It's like with the Columbia Pictures v. Fung we were talking about in another thread. The techdirt logic seems to be if you can find one or two things that are arguably different than how the plaintiff or the court purports them to be, then the whole thing is suspect and no more analysis is needed. Never mind the fact that all of the other facts could turn out to be true and that the evidence could overwhelmingly be against the defendant.
It's a faith-based approach if there ever was one.
Please explain how what Gibson has done here is "abusing the law"?
Funny how when the victims asserts their rights, they're "abusing the law." But the defendants' conscious decision to violate the victims' rights is never marked as abuse. Funny that. On techdirt, the plaintiff is the abuser and the defendant is the victim.
So instead of discussing the article at hand, you take one sentence out and use that in some kind of effort to discredit the article in whole?
By ignoring the actual problem, you agree with SCAMP that 30 seconds worth of a song is a performance. You must be a joy to have at kids pageants. You just stand at the back door demanding payment for the "artists", don't you?
I simply asked a question. I'm curious if U.S. "courts" have really held that 30-second song previews are not public performances. Apparently my inquisitive nature offends you. Curious.
Thanks, vivaelamor. I saw that link too. That story doesn't say anything about a court ruling that 30-second song previews are not public performances either.
Has a U.S. court ever held that a 30-second song preview is not a public performance? Mike's post indicates that "courts" have indeed held this. Is that true, or is it a mistake? That's all I want to know.
On the post: The History Of Intellectual Property Based On Its Use In Books
LOL! Great post. Thanks!
On the post: When Sending A Bogus TM C&D, Don't Send It To A Lawyer Who Understands TM Law
Re:
On the post: When Sending A Bogus TM C&D, Don't Send It To A Lawyer Who Understands TM Law
Nicely put. ;)
On the post: Guy Sues Both Wikipedia & Wikileaks To Get 'His Side Of The Story' Told
On the post: Would Twitter Be Liable For Links To Infringing Material?
Re:
I'm not arguing that they should be held liable, I'm only saying that they could be held liable under the right set of facts.
On the post: Would Twitter Be Liable For Links To Infringing Material?
Re: Re: Good topic!
I don't think there is a simple answer to your question, since you'd really have to analyze it on a case-by-case basis. The specifics would matter greatly.
If it's contributory infringement, it would have to be proved that Twitter either knew or should have known that the link was being used for infringing activity and then failed remove the link.
The reality is, Twitter is incentivized to take down any material they receive a notice for since that way they are completely immune from liability.
On the post: Would Twitter Be Liable For Links To Infringing Material?
Re: Re: Re: Re: Re: Re: Re: Re: Links more generally
They can.
You can post a link to infringing material--material that you did not distribute in the first place--and still be held liable for the infringement of other people who use your link to access the infringing material. It's called secondary or indirect liability.
On the post: Would Twitter Be Liable For Links To Infringing Material?
Re: Re: Re: Good topic!
On the post: Would Twitter Be Liable For Links To Infringing Material?
Good topic!
You're right that providing a link is not direct infringement, but there's more to it than that.
Services like Twitter fall under 17 U.S.C. 512(c), Information Residing on Systems or Networks at Direction of Users.
According to the statute, the service provider can be liable "for infringement of copyright by reason of the storage at the direction of the user" if they have either actual knowledge or apparent knowledge that the "material" or "an activity using the material" is infringing.
While the link itself is not infringing material, activity using that material, i.e., clicking on the link, can be infringing. If the activity using that material is infringing, then the service provider could potentially lose their safe harbor if they don't comply with the notice.
Not all links are the same though. Some links automatically start the download of the infringing material. Other links take you to a page where the infringing material is available. And other links take you to a page that has a link to another page where the infringing material is available. You get the idea.
I'll look up some caselaw on hyperlinks being the target of DMCA takedown notices and post what I find. Good topic.
On the post: Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them
Re: Actual Trademark Law
On the post: Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Faith-based means you assume something must be true, despite a lack of evidence.
Isn't that the equivalent to what I said?
"see what you want to see" = "assume something must be true"
"despite all the evidence to the contrary that's right before your nose" = "despite a lack of evidence"
And Mike, you're not fooling anyone by claiming that trademark law is only about confusion. Perhaps that used to be true, but it is disingenuous to pretend that that is now the case. You clearly are presenting trademark law as it used to be and/or how you think it should be. You are not presenting it as it actually is. You are consciously blurring the line between the two. That's called being a liar.
On the post: Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them
Re: Re: Re: Re: Re:
He indicates that since there APPEARS to be a mistake, the rest of Gibson's case is suspect. There is no analysis of the rest of Gibson's case, just the faith-based insinuation of FUD. On top of that, he indicates that trademark law is in fact ONLY about confusion. This too is faith-based since it ignores the simple reality that trademark law is IN FACT about much more. It's not based in reality or logic, so it's faith-based. Simple.
On the post: Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them
Re: Re: Re:
On the post: Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them
Re: Re: Re: Re: Re: Re: Re: Re: Re:
Sure I do. It means that you see what you want to see despite all the evidence to the contrary that's right before your nose. Easy to spot from a distance. I see it in you quite frequently.
I am stating the basis of trademark law as originally designed. I will admit that certain trademark lawyers have expanded the meaning over time with things like dilution, but, yes, I believe that's a perversion of the point of trademark law above and beyond what is reasonable, and thus, an abuse of the law.
Regardless, you are NOT stating what the law actually is, even though you are PRETENDING to be doing exactly that. Your conscious decision to misrepresent the truth is noted.
On the post: Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them
Re: Re: Re: Re: Re: Re: Re:
That's a doozy... and a faith-based oversimplification. You clearly are stating your opinion of how you think the law should be, but you are presenting it like it's a description of how the law actually is. You frequently blur this line, and I assume it's intentionally done. I often see those who don't have the law on their side use this trick.
If we're going to talk of trademark's purpose, let's look to some authority:
S.Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946).
Sixty-four years later, those words are still true. And by protecting trademarks, Congress hoped:
Id., at 4.
Care to back up your assertion that trademark law is only about confusion?
On the post: Permission Culture And The Automated Diminishment Of Fair Use
Obviously there's another side to this that you failed to bring up: the good that comes from it. I think your analysis would be more complete and compelling if you at least acknowledged the putative benefits. Without this, it's impossible to follow you to your conclusion that "we all suffer." How did you determine that in the net, that's necessarily true?
On the post: Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them
Re:
Desperate and whiny, that seems to be the TD trend this month.
I think it's just lazy. It's like with the Columbia Pictures v. Fung we were talking about in another thread. The techdirt logic seems to be if you can find one or two things that are arguably different than how the plaintiff or the court purports them to be, then the whole thing is suspect and no more analysis is needed. Never mind the fact that all of the other facts could turn out to be true and that the evidence could overwhelmingly be against the defendant.
It's a faith-based approach if there ever was one.
On the post: Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them
Re: Re: Re: Re: Re: Re:
Funny how when the victims asserts their rights, they're "abusing the law." But the defendants' conscious decision to violate the victims' rights is never marked as abuse. Funny that. On techdirt, the plaintiff is the abuser and the defendant is the victim.
On the post: Canadian Music Collection Society Demanding Payment For 30 Second Song Previews
Re: Re:
By ignoring the actual problem, you agree with SCAMP that 30 seconds worth of a song is a performance. You must be a joy to have at kids pageants. You just stand at the back door demanding payment for the "artists", don't you?
I simply asked a question. I'm curious if U.S. "courts" have really held that 30-second song previews are not public performances. Apparently my inquisitive nature offends you. Curious.
On the post: Canadian Music Collection Society Demanding Payment For 30 Second Song Previews
Re: Re:
Has a U.S. court ever held that a 30-second song preview is not a public performance? Mike's post indicates that "courts" have indeed held this. Is that true, or is it a mistake? That's all I want to know.
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