No, you are ignoring the part of the test that requires non-action in the face of notification.
AJ was talking about a subject that was a lot more specific than that. (Not that there was any indication of this in his original post, of course.)
In theory, without a "material contribution" to infringement, it wouldn't matter. Google could have taken no action whatsoever in the face of notification, and still not been guilty of contributory liability, because their actions didn't contribute to infringement in the first place.
That's what the circuit court decided. Thus, they never even considered whether Google took action in the face of notification. (Supposedly - the Ninth Circuit's characterization of the district court's ruling is a bit off, IMHO, but that's not important.)
Then why did the district court in Perfect 10 v. Amazon say that linking to infringing content was not material contribution?
Because they mixed up "contributory infringement" and "inducement," ruled (correctly) that Google wasn't guilty of inducement, and decided (erroneously) that they weren't guilty of contributory infringement either. From footnote 11 (the very first footnote in the section you're quoting):
Google's activities do not meet the "inducement" test explained in Grokster because Google has not promoted the use of its search engine specifically to infringe copyrights. See Grokster, 545 U.S. at 935-37, 125 S.Ct. 2764. However, the Supreme Court in Grokster did not suggest that a court must find inducement in order to impose contributory liability under common law principles.
You yourself once claimed that Perfect 10 v. Amazon didn't stand for the proposition that knowingly linking to infringing content could lead to contributory liability.
I have said - and do say - that merely linking to infringing content is not enough to lead to contributory liability.
And so does this court.
You must have three things:
1. Material contribution to actual infringement
2. Actual knowledge of specific infringing material
3. The right and ability to control the material contribution
Merely linking to content does not satisfy all three prongs. It satisfies the first, and all search engines (that I know of) have the third. It's the second prong that is missing. You must do more than merely link to infringing content - you must have "actual knowledge that specific infringing material is available" via that link. (As quoted in this case; emphasis in the original.)
I've also said - and I still say - that this entire test simply cannot be used to determine criminal infringement. The entire doctrine of secondary liability does not come from the copyright statutes, but is imported from patent law (as this case, again, makes clear), and you can't do that with criminal laws.
All of what you quoted was taken from earlier rulings - Napster, Grokster, and Netcom. It was well-settled case law long before Perfect 10 came around.
You need to get this idea out of your head, because it's absolutely, 100% wrong.
you DON'T own any part of someone else's work, whether physical or intellectual,
Nobody owns the "intellectual" part of someone else's work, not even the artist.
They are granted statutory monopoly rights over certain parts of their "intellectual" output - expression, in the case of copyright.
But that monopoly is not absolute, nor does it cover all parts of "intellectual" output. You can't copyright anything other than expression. You have a First Amendment right to fair use of a work. You have a property right to do as you please with your possessions, such as reselling them.
There's an old saying: "your rights end at the tip of my nose." Copyright doesn't follow that saying. It is nothing other than an infringement on the free speech and property rights of the public.
If you want a picture of copyright, imagine a fist hitting the public's nose — forever.
The definition to 'Publicly perform' seems to be on Aereo's side as well unless you think a single person is a "substantial number of persons outside of a normal circle of a family and its social acquaintances".
This is exactly correct, and it's why Aero won, and Chin is wrong.
The Copyright Act's definition of a "public performance" necessitates that the "end point" of the transmission be to a public location, or that the same transmission be to different members of the public.
Neither situation applies to Aero. Each antenna creates a unique transmission. The "end point" of each transmission is to a single, unique subscriber, and not "a place open to the public."
This is all laid out in the Cablevision case, and repeated in the ruling in Aero's favor. AJ and Chin may not like it, but it is absolutely correct according to the language of the Copyright Act.
I am amused to see that post #2 here, containing no spam, not even a hint of trollery - only valid dissent - has been flagged into Techdirt purgatory by the community.
He's also the same A.C. that kept posting idiotic "milk! moo! cluck! bawk!" comments, on every single story, regardless of content. You can see examples here, here, here, here, here, here, and probably on a dozen more stories.
In other words: his posts are flagged because he is a bad actor, who has no interest in discussion, and whose only purpose in being on this site is to be disruptive and derail the conversation.
He also has a history of sock puppetry, so I wouldn't be surprised if you are him.
Given my friend likely had info about such labels, probably local ones and not someone more reputable like Sony or Warner, I would guess that such people were screwed worse than the "reputable" labels.
I've never heard of smaller labels demanding "repayment" in their contracts, other than the way I described. Generally speaking, indie labels treat musicians much, much better than "reputable" labels. Obviously, there are some exceptions (Some Bizarre and Victory spring to mind).
They still have the same general setup, but usually the advances are lower (so less "debt") and the percentages are higher. That's because indies are set up so that you can sell 30,000 records and turn a profit; major labels are not.
I've heard they had to repay those advances. A musician friend says they do.
Not exactly. Here's how it works. (I'll use the term "artist" to include things like groups and bands. For simplicity, I'll leave out things like music videos.)
A label advances money to an artist who has signed with them.
All the costs of recording and producing the album come out of that advance. Usually, the band also pays some portion of the promotional budget from their advance. They live off of what is left over. (That includes things like buying a better guitar, paying their manager, etc.)
The advance must be paid back from the artist's royalties. Thus, if an album is "unrecouped," they will get absolutely no money whatsoever from the sale of that album. (At least 9 out of 10 albums are unrecouped, according to the RIAA.)
Whatever is unrecouped is usually "rolled over" to the next album. That is, artists won't earn any artist royalties until the current album's advance is recouped, and all the previous albums' advances are also recouped.
Note also that artist royalties are usually about 15% of the profit made from the albums; the rest goes to the label. So by the time the artist starts getting any royalties at all, the label has already made back five times the cost of the recording.
It's also worth mentioning that when an artist signs to a major label, they must sign over the copyrights to those recordings, permanently. No matter how much money they make, or whether they're recouped or not, they will never own the rights to their own recordings. (At least, not until 17 USC's reversion rights kick in, thirty-five years later... unless the labels can block it. But that's a subject for another day.)
However - they're not "in debt" to the label, in the same way as one is in debt to a credit card company. Whatever money they earn other than artist royalties, is theirs to keep.
At least, that was the way it worked before "360 deals," where the labels handles every aspect of the artist's music in the same way as above. In that case, the artist can't keep anything from their income streams until everything in the deal is recouped (album sales, live ticket sales, merch sales, etc).
Trying to blame someone for choosing not to put their music on Spotify is just pirate apologism.
And with this statement, you show just how far off the deep end you are.
Your argument doesn't make any sense. People are criticizing (not "blaming") artists for not putting their content on a service that is compeletely, 100% legal. The only consumers who are negatively affected are people who use Spotify.
Those who pirate are not affected one iota. They have absolutely nothing to gain by criticizing this decision.
If this is your idea of "piracy apologism," then you're completely out to lunch.
That is almost certainly the goal for the RIAA, the major labels, and traditional music distributors.
But I somehow doubt it's the goal of Yorke and company. It's much more likely that they got some bad advice from their managers, and/or haven't thought the whole thing through.
I think they believe this stunt is a negotiating tactic to get Spotify to pay them more money. It's understandable; under the old music model, these kinds of stunts were pretty much the only power you had as an artist.
It may work in the very short term. In the long term, of course, it will backfire very badly. Either Spotify will cave, and go out of business (sooner). Or they won't, and major label artists will be the only ones left on Spotify - essentially locking indie artists out. (They've already done this with Pandora, for the most part.)
Oh, look. Mike is blaming the artists for the fact that people willingly choose to violate artists' rights.
This is an outright lie, and an obvious one.
It's not their fault that they are selfish people.
Exactly as selfish as people who read books at the public library instead of buying them.
And, of course, the artists who are expected to get paid more than they already are aren't being selfish people. No, not at all. That kid on the playground who says "I'm going to take my ball and go home!" is motivated by altruism, don't cha know.
It's not their fault that they choose to pirate.
...said nobody, ever.
The pirates are the victims!
...said nobody, ever.
You just can't help being an outright liar, can you?
Pulling music off of Spotify doesn't help artists get paid. It merely drives people back to piracy.
Actually, it primarily drives people to not listen to their music.
Pulling music off of Spotify would be a terrible idea even if piracy didn't exist.
On the other hand, maybe more people will use something like eMusic instead. (My friend's wife works there, so I don't have a problem with that.) Of course, they're facing the same complaints too...
I can't speak for Mike, but I certainly support some of those things.
Actually, here's an example: eBook DRM.
I like to have all of my eBooks in one program's library. (Because I know your plan is to be a lawyer who specializes in unnecessary copyright litigation, I won't reveal the name of this particular program.)
But that poses a problem. I have bought several eBooks from multiple vendors: Amazon (which works only with Kindle), or Barnes & Noble (which works only with NOOK Study). Each has their own format with their own DRM, and you can't open one book in the other vendor's program. Much less a program from a third party.
And never mind the mess trying to get them to play on my Android device. Amazon has a program for this, but B&N doesn't - in fact, their books won't even work with their own NOOK devices.
The whole thing is a mess. In order to get around this, I use plug-ins to my third-party program (written by users) to strip the DRM and save the books in a non-proprietary format (either ePub or DRM-free PDF). Now, I have no problem including those books in my third-party program, nor do I have any issue with reading them on my Android device.
Note that I am doing this for eBooks that I bought, not that I pirated. It's almost certain that my use would be fair use under copyright law.
Under the letter of the law, the third-party eBook library program could be violating the DMCA anti-circumvention laws, and the people who own and distribute the program could face criminal charges and jail time.
That seems, not only monumentally unfair, but actually detrimental to everyone involved - including Amazon and B&N. It certainly goes against the primary purpose of copyright law: to benefit the public, and promote the widespread distribution of content.
Frankly, because DMCA anti-circumvention laws are primarily used in situations like this, I think it would be better if Congress scrapped those laws altogether. The detriment to the public far, far outweighs whatever benefits the public gets from those laws being there in the first place.
On the post: Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
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Oops, yes, you're right. I just thought that would be assumed.
On the post: Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
Re: Re: Re: Re: Re:
AJ was talking about a subject that was a lot more specific than that. (Not that there was any indication of this in his original post, of course.)
In theory, without a "material contribution" to infringement, it wouldn't matter. Google could have taken no action whatsoever in the face of notification, and still not been guilty of contributory liability, because their actions didn't contribute to infringement in the first place.
That's what the circuit court decided. Thus, they never even considered whether Google took action in the face of notification. (Supposedly - the Ninth Circuit's characterization of the district court's ruling is a bit off, IMHO, but that's not important.)
On the post: Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
Re: Re: Re:
Because they mixed up "contributory infringement" and "inducement," ruled (correctly) that Google wasn't guilty of inducement, and decided (erroneously) that they weren't guilty of contributory infringement either. From footnote 11 (the very first footnote in the section you're quoting):
Do you ever know what you're talking about, Karl?
More than you, obviously.
On the post: Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
Re: Re: Re:
I have said - and do say - that merely linking to infringing content is not enough to lead to contributory liability.
And so does this court.
You must have three things:
1. Material contribution to actual infringement
2. Actual knowledge of specific infringing material
3. The right and ability to control the material contribution
Merely linking to content does not satisfy all three prongs. It satisfies the first, and all search engines (that I know of) have the third. It's the second prong that is missing. You must do more than merely link to infringing content - you must have "actual knowledge that specific infringing material is available" via that link. (As quoted in this case; emphasis in the original.)
I've also said - and I still say - that this entire test simply cannot be used to determine criminal infringement. The entire doctrine of secondary liability does not come from the copyright statutes, but is imported from patent law (as this case, again, makes clear), and you can't do that with criminal laws.
On the post: Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
Re:
Perfect 10 has also gotten us some great language
All of what you quoted was taken from earlier rulings - Napster, Grokster, and Netcom. It was well-settled case law long before Perfect 10 came around.
On the post: Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
Re:
Yeah, except that nobody here has argued against that part of the ruling. So, nice straw man argument.
On the post: Copyright And The End Of Property Rights
Re: (Sigh.) You've NEVER "owned" someone else's intellectual property.
Copyright allows the rights holder to determine what consumers can do with their own property after they have legally bought it on an open market.
And you think consumers are the ones with a sense of "entitlement?"
intellectual property is real enough to be easily distinguished in both common law and statute.
It bears repeating - once again - that there is no common law copyright. There never was.
https://www.techdirt.com/articles/20130412/16073622693/julie-samuels-favorite-techdirt-posts-w eek.shtml#c618
You need to get this idea out of your head, because it's absolutely, 100% wrong.
you DON'T own any part of someone else's work, whether physical or intellectual,
Nobody owns the "intellectual" part of someone else's work, not even the artist.
They are granted statutory monopoly rights over certain parts of their "intellectual" output - expression, in the case of copyright.
But that monopoly is not absolute, nor does it cover all parts of "intellectual" output. You can't copyright anything other than expression. You have a First Amendment right to fair use of a work. You have a property right to do as you please with your possessions, such as reselling them.
There's an old saying: "your rights end at the tip of my nose." Copyright doesn't follow that saying. It is nothing other than an infringement on the free speech and property rights of the public.
If you want a picture of copyright, imagine a fist hitting the public's nose — forever.
On the post: Judge: Aereo Case Was Decided Incorrectly, Because I Don't Like Previous Ruling
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Ha ha, most accurate Freudian slip ever.
On the post: Judge: Aereo Case Was Decided Incorrectly, Because I Don't Like Previous Ruling
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That says a lot about which "scholars" you read, and nothing about the correctness of Chin's arguments.
On the post: Judge: Aereo Case Was Decided Incorrectly, Because I Don't Like Previous Ruling
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This is exactly correct, and it's why Aero won, and Chin is wrong.
The Copyright Act's definition of a "public performance" necessitates that the "end point" of the transmission be to a public location, or that the same transmission be to different members of the public.
Neither situation applies to Aero. Each antenna creates a unique transmission. The "end point" of each transmission is to a single, unique subscriber, and not "a place open to the public."
This is all laid out in the Cablevision case, and repeated in the ruling in Aero's favor. AJ and Chin may not like it, but it is absolutely correct according to the language of the Copyright Act.
On the post: Judge: Aereo Case Was Decided Incorrectly, Because I Don't Like Previous Ruling
Re:
With good reason. He may start out sane, but by the end of the discussion, he always devolves into an immature, trolling, lying brat.
http://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-t echdirt.shtml#c1210
He's also the same A.C. that kept posting idiotic "milk! moo! cluck! bawk!" comments, on every single story, regardless of content. You can see examples here, here, here, here, here, here, and probably on a dozen more stories.
In other words: his posts are flagged because he is a bad actor, who has no interest in discussion, and whose only purpose in being on this site is to be disruptive and derail the conversation.
He also has a history of sock puppetry, so I wouldn't be surprised if you are him.
On the post: Pulling Music Off Spotify Sends Exactly The Wrong Message
Re: Re: Re: Re: Re:
I've never heard of smaller labels demanding "repayment" in their contracts, other than the way I described. Generally speaking, indie labels treat musicians much, much better than "reputable" labels. Obviously, there are some exceptions (Some Bizarre and Victory spring to mind).
They still have the same general setup, but usually the advances are lower (so less "debt") and the percentages are higher. That's because indies are set up so that you can sell 30,000 records and turn a profit; major labels are not.
On the post: Pulling Music Off Spotify Sends Exactly The Wrong Message
Re: Re: Re: Re:
How To Sell 1 Million Albums and Owe $500,000
Apparently, actors are in the same boat:
I'm Rich Bitch! ....Actor Residual Check
On the post: Pulling Music Off Spotify Sends Exactly The Wrong Message
Re: Re: Re:
Not exactly. Here's how it works. (I'll use the term "artist" to include things like groups and bands. For simplicity, I'll leave out things like music videos.)
A label advances money to an artist who has signed with them.
All the costs of recording and producing the album come out of that advance. Usually, the band also pays some portion of the promotional budget from their advance. They live off of what is left over. (That includes things like buying a better guitar, paying their manager, etc.)
The advance must be paid back from the artist's royalties. Thus, if an album is "unrecouped," they will get absolutely no money whatsoever from the sale of that album. (At least 9 out of 10 albums are unrecouped, according to the RIAA.)
Whatever is unrecouped is usually "rolled over" to the next album. That is, artists won't earn any artist royalties until the current album's advance is recouped, and all the previous albums' advances are also recouped.
Note also that artist royalties are usually about 15% of the profit made from the albums; the rest goes to the label. So by the time the artist starts getting any royalties at all, the label has already made back five times the cost of the recording.
It's also worth mentioning that when an artist signs to a major label, they must sign over the copyrights to those recordings, permanently. No matter how much money they make, or whether they're recouped or not, they will never own the rights to their own recordings. (At least, not until 17 USC's reversion rights kick in, thirty-five years later... unless the labels can block it. But that's a subject for another day.)
However - they're not "in debt" to the label, in the same way as one is in debt to a credit card company. Whatever money they earn other than artist royalties, is theirs to keep.
At least, that was the way it worked before "360 deals," where the labels handles every aspect of the artist's music in the same way as above. In that case, the artist can't keep anything from their income streams until everything in the deal is recouped (album sales, live ticket sales, merch sales, etc).
On the post: Pulling Music Off Spotify Sends Exactly The Wrong Message
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And with this statement, you show just how far off the deep end you are.
Your argument doesn't make any sense. People are criticizing (not "blaming") artists for not putting their content on a service that is compeletely, 100% legal. The only consumers who are negatively affected are people who use Spotify.
Those who pirate are not affected one iota. They have absolutely nothing to gain by criticizing this decision.
If this is your idea of "piracy apologism," then you're completely out to lunch.
But I guess we all knew that already.
On the post: Pulling Music Off Spotify Sends Exactly The Wrong Message
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That is almost certainly the goal for the RIAA, the major labels, and traditional music distributors.
But I somehow doubt it's the goal of Yorke and company. It's much more likely that they got some bad advice from their managers, and/or haven't thought the whole thing through.
I think they believe this stunt is a negotiating tactic to get Spotify to pay them more money. It's understandable; under the old music model, these kinds of stunts were pretty much the only power you had as an artist.
It may work in the very short term. In the long term, of course, it will backfire very badly. Either Spotify will cave, and go out of business (sooner). Or they won't, and major label artists will be the only ones left on Spotify - essentially locking indie artists out. (They've already done this with Pandora, for the most part.)
On the post: Pulling Music Off Spotify Sends Exactly The Wrong Message
Re: "from everything we've seen," -- Your limited view.
I guess you missed the part where Spotify (like Pandora) is not making a profit, and under current rates, probably never will.
On the post: Pulling Music Off Spotify Sends Exactly The Wrong Message
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This is an outright lie, and an obvious one.
It's not their fault that they are selfish people.
Exactly as selfish as people who read books at the public library instead of buying them.
And, of course, the artists who are expected to get paid more than they already are aren't being selfish people. No, not at all. That kid on the playground who says "I'm going to take my ball and go home!" is motivated by altruism, don't cha know.
It's not their fault that they choose to pirate.
...said nobody, ever.
The pirates are the victims!
...said nobody, ever.
You just can't help being an outright liar, can you?
On the post: Pulling Music Off Spotify Sends Exactly The Wrong Message
Piracy isn't the deciding factor
Actually, it primarily drives people to not listen to their music.
Pulling music off of Spotify would be a terrible idea even if piracy didn't exist.
On the other hand, maybe more people will use something like eMusic instead. (My friend's wife works there, so I don't have a problem with that.) Of course, they're facing the same complaints too...
On the post: HBO's Latest DMCA Abuse: Issues Takedown To Google Over Popular VLC Media Player
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Actually, here's an example: eBook DRM.
I like to have all of my eBooks in one program's library. (Because I know your plan is to be a lawyer who specializes in unnecessary copyright litigation, I won't reveal the name of this particular program.)
But that poses a problem. I have bought several eBooks from multiple vendors: Amazon (which works only with Kindle), or Barnes & Noble (which works only with NOOK Study). Each has their own format with their own DRM, and you can't open one book in the other vendor's program. Much less a program from a third party.
And never mind the mess trying to get them to play on my Android device. Amazon has a program for this, but B&N doesn't - in fact, their books won't even work with their own NOOK devices.
The whole thing is a mess. In order to get around this, I use plug-ins to my third-party program (written by users) to strip the DRM and save the books in a non-proprietary format (either ePub or DRM-free PDF). Now, I have no problem including those books in my third-party program, nor do I have any issue with reading them on my Android device.
Note that I am doing this for eBooks that I bought, not that I pirated. It's almost certain that my use would be fair use under copyright law.
Under the letter of the law, the third-party eBook library program could be violating the DMCA anti-circumvention laws, and the people who own and distribute the program could face criminal charges and jail time.
That seems, not only monumentally unfair, but actually detrimental to everyone involved - including Amazon and B&N. It certainly goes against the primary purpose of copyright law: to benefit the public, and promote the widespread distribution of content.
Frankly, because DMCA anti-circumvention laws are primarily used in situations like this, I think it would be better if Congress scrapped those laws altogether. The detriment to the public far, far outweighs whatever benefits the public gets from those laws being there in the first place.
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