Google doesn't know the link points to infringing content until someone tells them.
But a person who on purpose posts a link that they already know points to infringing content ALREADY KNOWS that the link points to infringing content. No one has to tell them because they already know.
How can someone knowingly link to infringing material yet not know that they're linking to infringing material until someone tells them they are? That makes zero sense.
So when you say they cannot know, that makes no sense. I'm talking about people who do know and who post the link with that knowledge.
"The court found that Google could be liable for contributory infringement for failing to remove links when notified that they pointed to infringing material. "
but this:
"but intentionally linking to infringing content can create copyright liability"
is not an accurate restatement of that opinion and therein lies the problem. The court didn't find that linking is contributory infringement it found that failing to remove the links after being notified they were to infringing material could be contributory infringement. You're essentially trying to conflate the 'knowledge' being refereed to in the ruling, being actual legal knowledge as a result of direct notification, with 'common sense' or general knowledge, which is really nothing more than an educated guess or suspicion. Again, nowhere in that ruling, even the sections you've quoted, does it talk about links themselves constituting infringement it takes about lack of action after having knowledge opening the possibility of contributory infringement. It's like you're reading into it what you wish it said instead of what it actually said.
Last post, then I have to go. The court found that linking to infringing material could be contributory infringement once Google received notice that the link pointed to infringing material. As the court explained, once Google has that knowledge, it is imputed with the intent to cause whatever infringement occurs via the link. A person who intentionally links to infringing material doesn't have to be notified that their like points to infringing material. They already know this. So their intent to cause infringement via the link they provided can be imputed immediately.
I'm not conflating specific knowledge with general knowledge. Google becomes potentially liable when it knows a specific link points to infringing material. A person that knowingly provides a link to infringing material already has specific knowledge that the link points to infringing material. There's nothing general about it.
The ruling says that if Google continues to provide a link after it is informed that the link is infringing, then Google can be liable. Similarly, a person who provides a link to specific infringing material is already liable for that link because they already have the knowledge. Google needs to be told because otherwise they don't have the knowledge. A person that knowingly posts such a link doesn't need to be told anything since they already know.
Yes, if it's for the purpose of helping someone commit an illegal act. It should come as no surprise that it can be illegal to help someone do something illegal.
I guess that explains why you never come forward with an opinion on any of the news these articles highlight. Judging by your comments alone, it seems like your satisfied to work your argument within the confines of what the law says, even if that particular law seems unjust.
So basically, until you start thinking outside the box with your comments, no one will take you seriously.
What the law says is a different issue than whether it's just. Mike starts with his conclusion, which is usually an extremist position on what's just, and then works backward to make the law fit that conclusion. So with linking, he doesn't think policy-wise that it should lead to liability. So when he looks at the law, what does he see? No liability. I prefer to look at the what the law actually says and to discuss what is the better policy separately.
Look, if you maintain that copyright as it is now is compatible with the open, information society we are living in, you are equally dishonest. It just does not compute. And add to that the implications for freedom of speech your position entails, which proves that your purpose is very sinister indeed.
The two are in conflict, that much is clear. I don't agree that it's all-or-nothing as you do. I think a balance is possible and preferable. You think in extremes. I don't.
It does say it all. It says he wants to have an objective discussion of the facts and you want to turn this into some kind of credibility test where if people to hold the same values or belief as you you can dismiss them out of hand. You're so adherent to that even when someone refuses to engage on that base level you pretend as if that's the answer you wanted to hear instead of, you know, actual arguing anything on the merits alone. You're attacking his credibility because you're desperate and pathetic.
I don't care if he holds different values. The world would be a boring place if everyone thought the same things I think. I care that he's arrogant and deceitful. Those are personality flaws that he should work on. I'm attacking his credibility because I find he has none. After years of reading this blog and trying to engage him myself and watching others try, I've come to the inescapable conclusion that he's just a zealot who doesn't ever want to be challenged. He'll go on spouting his nonsense no matter how much evidence is stacked against him. He only cares about spreading his agenda, not in seeking out the truth.
I'd love to get Mike into the discussion, but we all know that he doesn't like to stand by his words or answer his detractors when challenged. He'll just go on saying that linking doesn't lead to liability no matter what anyone says.
This is just silly --- the reason Google honors DMCA takedowns is that it doesn't want to lose its "safe harbor" --- said "safe harbor" being a much, much better defense than the mere taking down of infringing material upon notification. You seem to have some understanding of the law, so you probably do realize that without that safe harbor, Google would anyway have been liable for the infringement even if it could show that it had no possibility of being aware of it previous to the notification --- as far as I know, ignorance and/or lack of intention is not a proper defense against the tort of copyright infringement (under US law).
Yes, they want to keep the safe harbor. The safe harbor is irrelevant the ultimate issue of liability, but it certainly drastically reduces the liability they might face if they are in fact liable. But the same inaction that could cause them to lose the safe harbor, namely, not responding to a DMCA takedown notification, could also subject them to contributory liability for the links they failed to take down. The safe harbors are basically (but not completely) just codifications of common law principles. Even if Google didn't qualify for the safe harbors, I don't see how Google could be liable for the links it provides absent specific knowledge that they point to infringing material.
I'd look to cases like this one:
According to the undisputed testimony of Google's Internet expert, Dr. John Levine, Web site publishers typically communicate their permissions to Internet search engines (such as Google) using “meta-tags.” A Web site publisher can instruct a search engine not to cache the publisher's Web site by using a “no-archive” meta-tag. According to Dr. Levine, the “no-archive” meta-tag is a highly publicized and well-known industry standard. Levine Report ¶¶ 33-37. Field concedes he was aware of these industry standard mechanisms, and knew that the presence of a “no archive” meta-tag on the pages of his Web site would have informed Google not to display “Cached” links to his pages. Despite this knowledge, Field chose not to include the no-archive meta-tag on the pages of his site. He did so, knowing that Google would interpret the absence of the meta-tag as permission to allow access to the pages via “Cached” links. Thus, with knowledge of how Google would use the copyrighted works he placed on those pages, and with knowledge that he could prevent such use, Field instead made a conscious decision to permit it. His conduct is reasonably interpreted as the grant of a license to Google for that use. See, e.g., Keane, 968 F.Supp. at 947 (copyright owner's knowledge of defendant's use coupled with owner's silence constituted an implied license); See also Levine Report ¶ 37 (providing the undisputed expert opinion that Google reasonably interpreted absence of meta-tags as permission to present “Cached” links to the pages of Field's site). Accordingly, the Court grants Google's motion that it is entitled to the defense of implied license, and denies Field's cross-motion that the defense is inapplicable.
Field v. Google Inc., 412 F. Supp. 2d 1106, 1116 (D. Nev. 2006).
There's other arguments too, like fair use, but I don't have time to dig that up right now.
I don't think it has to be so extreme and all-or-nothing. There's lots of UGC on the web that isn't infringing, and there's lots that is. I don't see how taking down sites dedicated to infringement destroys culture or the entire internet. That's silly.
Let's assume your reading of the ruling is correct and that instead of saying that direct infringement by providing a link is impossible and contributory infringement is possible it actually said contributory infringement was certain. Even assuming that's true you're still absolutely wrong about this being 'well-settled' given that it's only the ninth circuit saying this.
The part that I said is well-settled is that one who authorizes an infringement without the authority to do so is a secondary infringer because they are violating the right holder's exclusive right "to authorize" that activity. Whether or not a linker is an authorizer is not well-settled, as you point out, but that's not the point I made. I believe that linking to an infringing can lead to liability, not that it necessarily does. It depends on the facts, as I've indicated several time.
I then said: "It is well-settled that one who authorizes copying when they don't have the right is a contributory or vicarious infringer." That is well-settled, as I'm sure you know. So, no, I don't agree that I said anything wrong.
A link doesn't fit the description of what's being discussed in that portion of the opinion but I suspect you knew that because the full ruling makes clear that hyperlinks were not infringing and thumbnails were a fair use because a search engine is a transformative use. Nowhere in that ruling, even the section you quoted, does it talk about hyperlinks themselves constituting infringement.
That's not so.
The very first sentence of the opinion: "In this appeal, we consider a copyright owner's efforts to stop an Internet search engine from facilitating access to infringing images." 508 F.3d 1154. The issue is Google's search engine, specifically its image search which links to infringing images.
The court said several things:
I. Direct Infringement; 508 F.3d at 1159-68.
(1) Applying the server test, the court found that Google didn't directly violate the display right for inline linking to full size images hosted elsewhere.
(2) Using similar reasoning, the court also found that Google didn't directly violate the distribution right by inline linking to full size images hosted elsewhere.
(3) As to thumbnails, the court found that Perfect 10 had made out a prima facie case of direct infringement of the display right. However, the use was fair so there no liability on Google's part.
There was a similar ruling as to the cache that I'm skipping.
II. Indirect Infringement; 508 F.3d at 1168-75.
(4) The court found that Google could be liable for contributory infringement for failing to remove links when notified that they pointed to infringing material.
(5) The court found that Google wouldn't be liable for vicarious infringement since they didn't have the right and ability to control the direct infringers.
******
Here's the text that shows I'm right.
Right after the section heading "Secondary Liability for Copyright Infringement," the court states: "We now turn to the district court's ruling that Google is unlikely to be secondarily liable for its in-line linking to infringing full-size images under the doctrines of contributory and vicarious infringement." 508 F.3d at 1168-69. The issue was whether Google was "secondarily liable in light of the direct infringement that is undisputed by the parties: third-party websites' reproducing, displaying, and distributing unauthorized copies of Perfect 10's images on the Internet." 508 F.3d at 1170.
So the court is explicitly talking about secondary liability for inline linking to infringing images hosted on third-party websites.
Look at the section labelled "A. Contributory Infringement." That entire section is about whether Google is contibutorily liable for infringement for inline linking to images hosted on third-party websites.
The court concludes by stating: "Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps." 508 F.3d at 1172. So by knowingly providing links to infringing images in its search results, Google is facing contributory liability. The way Google makes Perfect 10's images available via its search engine is by LINKS. That's the whole point.
There was a factual dispute that needed to be resolved, so the case was remanded: "Therefore, we must remand this claim to the district court for further consideration whether Perfect 10 would likely succeed in establishing that Google was contributorily liable for in-line linking to full-size infringing images under the test enunciated today." 508 F.3d at 1173. It couldn't be any clearer than that.
So, no, I don't agree with you. The issue was inline linking, not hyperlinking, but I don't see how that could possibly make any difference. Either type of linking could lead to contributory liability under the court's logic.
It's my opinion that Mike is a pirate apologist down to his core. He will always hate all things copyright, and he will always defend the pirates and blame the victims. I find him to be a fundamentally dishonest person who will go to any length and stoop to any low just denigrate anyone and anything pro-copyright. He is completely arrogant, conceited, haughty, and derogatory to anyone who dares think or say anything that differs from his point of view. Day after day his actions only strengthen my opinion. The fact that he refuses to ever discuss directly his personal beliefs about copyright and piracy says it all. Techdirt is a pirate apologist blog if there ever was one, and Mike is the most insincere and deceitful person in the entire IP debate. I find him to be truly a repulsive person. You may feel differently, but that's my opinion.
What I'm saying is that if you click on a link that takes you to an infringing file and then you infringe by downloading that file, then the person who supplied you the link for the purpose of facilitating your direct infringement is also liable for your infringement as a contributory infringer. I'm not talking about situations where you click on a link and you don't know where it's going to take you or anything like that. I'm talking about links provided for the purpose of helping people infringe that get used for that very purpose. Think of a site like TVShack.net that collected links for the purpose of helping others infringe.
It's the functional aspect of the link that is the problem:
In applying the DMCA to linking (via hyperlinks), Judge Kaplan recognized, as he had with DeCSS code, that a hyperlink has both a speech and a nonspeech component. It conveys information, the Internet address of the linked web page, and has the functional capacity to bring the content of the linked web page to the user's computer screen (or, as Judge Kaplan put it, to “take one almost instantaneously to the desired destination.” Id.). As he had ruled with respect to DeCSS code, he ruled that application of the DMCA to the Defendants' linking to web sites containing DeCSS is content-neutral because it is justified without regard to the speech component of the hyperlink. Id. The linking prohibition applies whether or not the hyperlink contains any information, comprehensible to a human being, as to the Internet address of the web page being accessed. The linking prohibition is justified solely by the functional capability of the hyperlink. Applying the O'Brien/Ward/Turner Broadcasting requirements for content-neutral regulation, Judge Kaplan then ruled that the DMCA, as applied to the Defendants' linking, served substantial governmental interests and was unrelated to the suppression of free expression. Id. We agree.
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 456 (2d Cir. 2001) (emphasis added).
The First Amendment argument isn't going to win since it's the functional aspect of the link that's at issue, not the speech aspect. You can get heightened First Amendment scrutiny perhaps, but as the Second Circuit held, a copyright law will pass such scrutiny. The link isn't removed because of the speech aspect. It's removed because it's being used to cause infringement.
That's a good point. I have no trouble with the idea that rogue sites shouldn't be linked to once it's been determined that such a site is dedicated to infringement. That's what SOPA and PROTECT IP were designed to do, and I thought the idea was a good one. Even without the bills, there's a good argument that once a website has shown that's its primary purpose is infringement, then linking to the site could create liability. I like the argument. It's why I think it's silly for Google to remove such sites from its autocomplete, but not from its search results entirely. If the site is rogue, then why link to it at all unless the purpose is to facilitate the infringement thereon?
If the link is purposefully posted with the intent to assist in a wrongdoing, then that creates liability. Helping someone commit a wrong, if done purposefully, is itself wrong. Again, this notion developed in the common law, and the reasoning applies no matter what the wrong.
Google doesn't have knowledge that any specific link points to infringing material until they are so notified. Once notified, they then have the intent. But not before. That's what the Ninth Circuit said, and I think the reasoning is sound. Under your theory all search engines would be liable for every infringing link--so there'd be no more search engines. The Ninth Circuit's theory is more persuasive, and it comports with the caselaw that says there must be specific knowledge, not general knowledge.
Only the copyright owner has the right "to authorize" copying. 17 U.S.C. 106. A linker is authorizing copying when they don't have the right to do so. It is well-settled that one who authorizes copying when they don't have the right is a contributory or vicarious infringer.
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Google doesn't know the link points to infringing content until someone tells them.
But a person who on purpose posts a link that they already know points to infringing content ALREADY KNOWS that the link points to infringing content. No one has to tell them because they already know.
How can someone knowingly link to infringing material yet not know that they're linking to infringing material until someone tells them they are? That makes zero sense.
So when you say they cannot know, that makes no sense. I'm talking about people who do know and who post the link with that knowledge.
Sheesh.
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"The court found that Google could be liable for contributory infringement for failing to remove links when notified that they pointed to infringing material. "
but this:
"but intentionally linking to infringing content can create copyright liability"
is not an accurate restatement of that opinion and therein lies the problem. The court didn't find that linking is contributory infringement it found that failing to remove the links after being notified they were to infringing material could be contributory infringement. You're essentially trying to conflate the 'knowledge' being refereed to in the ruling, being actual legal knowledge as a result of direct notification, with 'common sense' or general knowledge, which is really nothing more than an educated guess or suspicion. Again, nowhere in that ruling, even the sections you've quoted, does it talk about links themselves constituting infringement it takes about lack of action after having knowledge opening the possibility of contributory infringement. It's like you're reading into it what you wish it said instead of what it actually said.
Last post, then I have to go. The court found that linking to infringing material could be contributory infringement once Google received notice that the link pointed to infringing material. As the court explained, once Google has that knowledge, it is imputed with the intent to cause whatever infringement occurs via the link. A person who intentionally links to infringing material doesn't have to be notified that their like points to infringing material. They already know this. So their intent to cause infringement via the link they provided can be imputed immediately.
I'm not conflating specific knowledge with general knowledge. Google becomes potentially liable when it knows a specific link points to infringing material. A person that knowingly provides a link to infringing material already has specific knowledge that the link points to infringing material. There's nothing general about it.
The ruling says that if Google continues to provide a link after it is informed that the link is infringing, then Google can be liable. Similarly, a person who provides a link to specific infringing material is already liable for that link because they already have the knowledge. Google needs to be told because otherwise they don't have the knowledge. A person that knowingly posts such a link doesn't need to be told anything since they already know.
You're the one not understanding the case.
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So basically, until you start thinking outside the box with your comments, no one will take you seriously.
What the law says is a different issue than whether it's just. Mike starts with his conclusion, which is usually an extremist position on what's just, and then works backward to make the law fit that conclusion. So with linking, he doesn't think policy-wise that it should lead to liability. So when he looks at the law, what does he see? No liability. I prefer to look at the what the law actually says and to discuss what is the better policy separately.
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The two are in conflict, that much is clear. I don't agree that it's all-or-nothing as you do. I think a balance is possible and preferable. You think in extremes. I don't.
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I don't care if he holds different values. The world would be a boring place if everyone thought the same things I think. I care that he's arrogant and deceitful. Those are personality flaws that he should work on. I'm attacking his credibility because I find he has none. After years of reading this blog and trying to engage him myself and watching others try, I've come to the inescapable conclusion that he's just a zealot who doesn't ever want to be challenged. He'll go on spouting his nonsense no matter how much evidence is stacked against him. He only cares about spreading his agenda, not in seeking out the truth.
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Yes, they want to keep the safe harbor. The safe harbor is irrelevant the ultimate issue of liability, but it certainly drastically reduces the liability they might face if they are in fact liable. But the same inaction that could cause them to lose the safe harbor, namely, not responding to a DMCA takedown notification, could also subject them to contributory liability for the links they failed to take down. The safe harbors are basically (but not completely) just codifications of common law principles. Even if Google didn't qualify for the safe harbors, I don't see how Google could be liable for the links it provides absent specific knowledge that they point to infringing material.
I'd look to cases like this one:Field v. Google Inc., 412 F. Supp. 2d 1106, 1116 (D. Nev. 2006).
There's other arguments too, like fair use, but I don't have time to dig that up right now.
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The part that I said is well-settled is that one who authorizes an infringement without the authority to do so is a secondary infringer because they are violating the right holder's exclusive right "to authorize" that activity. Whether or not a linker is an authorizer is not well-settled, as you point out, but that's not the point I made. I believe that linking to an infringing can lead to liability, not that it necessarily does. It depends on the facts, as I've indicated several time.
I said: "A linker is authorizing copying when they don't have the right to do so." I believe that to be true, and it follows from the Ninth Circuit case I quoted that you don't appear to understand. See http://www.techdirt.com/articles/20120914/05442020382/dutch-court-says-linking-can-be-form-copyright -infringement.shtml#c770
I then said: "It is well-settled that one who authorizes copying when they don't have the right is a contributory or vicarious infringer." That is well-settled, as I'm sure you know. So, no, I don't agree that I said anything wrong.
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That's not so.
The very first sentence of the opinion: "In this appeal, we consider a copyright owner's efforts to stop an Internet search engine from facilitating access to infringing images." 508 F.3d 1154. The issue is Google's search engine, specifically its image search which links to infringing images.
The court said several things:
I. Direct Infringement; 508 F.3d at 1159-68.
(1) Applying the server test, the court found that Google didn't directly violate the display right for inline linking to full size images hosted elsewhere.
(2) Using similar reasoning, the court also found that Google didn't directly violate the distribution right by inline linking to full size images hosted elsewhere.
(3) As to thumbnails, the court found that Perfect 10 had made out a prima facie case of direct infringement of the display right. However, the use was fair so there no liability on Google's part.
There was a similar ruling as to the cache that I'm skipping.
II. Indirect Infringement; 508 F.3d at 1168-75.
(4) The court found that Google could be liable for contributory infringement for failing to remove links when notified that they pointed to infringing material.
(5) The court found that Google wouldn't be liable for vicarious infringement since they didn't have the right and ability to control the direct infringers.
******
Here's the text that shows I'm right.
Right after the section heading "Secondary Liability for Copyright Infringement," the court states: "We now turn to the district court's ruling that Google is unlikely to be secondarily liable for its in-line linking to infringing full-size images under the doctrines of contributory and vicarious infringement." 508 F.3d at 1168-69. The issue was whether Google was "secondarily liable in light of the direct infringement that is undisputed by the parties: third-party websites' reproducing, displaying, and distributing unauthorized copies of Perfect 10's images on the Internet." 508 F.3d at 1170.
So the court is explicitly talking about secondary liability for inline linking to infringing images hosted on third-party websites.
Look at the section labelled "A. Contributory Infringement." That entire section is about whether Google is contibutorily liable for infringement for inline linking to images hosted on third-party websites.
The court concludes by stating: "Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps." 508 F.3d at 1172. So by knowingly providing links to infringing images in its search results, Google is facing contributory liability. The way Google makes Perfect 10's images available via its search engine is by LINKS. That's the whole point.
There was a factual dispute that needed to be resolved, so the case was remanded: "Therefore, we must remand this claim to the district court for further consideration whether Perfect 10 would likely succeed in establishing that Google was contributorily liable for in-line linking to full-size infringing images under the test enunciated today." 508 F.3d at 1173. It couldn't be any clearer than that.
So, no, I don't agree with you. The issue was inline linking, not hyperlinking, but I don't see how that could possibly make any difference. Either type of linking could lead to contributory liability under the court's logic.
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The First Amendment argument isn't going to win since it's the functional aspect of the link that's at issue, not the speech aspect. You can get heightened First Amendment scrutiny perhaps, but as the Second Circuit held, a copyright law will pass such scrutiny. The link isn't removed because of the speech aspect. It's removed because it's being used to cause infringement.
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