I said it's not infringing, which is true. I've explained why at length more than once.
It's hilarious to me that you guys, who hate copyright and see noninfringement everywhere you look, are hellbent on seeing my use as infringement. Makes me smile at the duplicity.
This article is about France. I'm talking about this article. I'm aware that U.S. law is different. I think the district court in the case you're referring to got it right. There is no negligent infringement in the U.S. That was a silly theory to begin with. The issue there should have been contributory infringement.
I'll agree that it's mercantilism. I don't agree that it's a waste. If you don't think that certain rights should be enforced, take away those rights. But until then, don't complain that they're being enforced. And having the government enforce them in this way makes sense to me. Having the right holder go after an infringer one at a time is not practical.
Glyn notes that the law in France is different: "That's because under the HADOPI law, it is the owner of the Internet connection who is held responsible for any infringement committed with it, so it's the husband, not the (ex-)wife who has ended up being fined 150 euros (about $200) for negligence."
He was negligent. That's unlawful. So it's not true that he didn't commit any wrongdoing. Being negligent is unlawful. The law imposes liability on negligent people. The idea that negligence is unlawful is centuries old. You guys are acting like it's a crazy concept.
Oh Mike, Can you ever just have a normal conversation? You complained that I ran away and refused to answer a question. Everyone can see that it was you who did just that. I'm here ready to answer any question you might have. You've run off and hid in the corner, stomping your feet. Your desperation and dishonesty is just sad. I can honestly say that I've never come across a sadder or more dishonest person on the internet. You will never just have a direct discussion with one of your detractors. Never. That says all there is about you that anyone needs to know. You're a complete fake. Everything about you is complete bullshit. The fact that you con so many people is just sad. I could never live that way.
So the guy who negligently and illegally let his wife use his internet connection to break the law is the "victim"? What about the actual victims, you know, the ones who actually had their rights violated? Why no mention of them?
Moreover, this case must reinforce the view that HADOPI is a colossal waste of money. In two years of existence, HADOPI has sent out 1.15 million first warnings, 102,854 second notices, and 340 "third strikes". And yet all French government has to show for the 12 million euros it costs to run HADOPI each year is the conviction of one innocent man.
Those facts say to me that it's working quite well. Are you suggesting that unless thousands of people are convicted then it's not working? I don't even begin to understand your point. If thousands of people are being educated and not receiving more strikes so that there's no need to convict them, then it's working perfectly. Do you honestly think success should be measured by convictions?
And if under the law negligence is not legal, then how in the world is this guy "innocent"? That makes zero sense. He's not innocent, he's negligent. This is just silly whining, Glyn. You wouldn't be happy if there were thousands of convictions, yet you're whining about just one. And you're making the intellectually dishonest suggestion that he's somehow innocent while you admit that what he got convicted of is in fact illegal. Give me a break with the pirate-apologism.
Tenenbaum had Nesson, and Thomas-Rasset had Camara (Nesson's protege). Didn't work out too well for either one. Settle? No way! Let's challenge the constitutionality of statutory damages!
I don't think the lawyer, Evan Brown, represents anyone involved. He was merely giving an opinion to arstechnica for their article, and then Mike reproduced it here. He says: "Courts have held that just providing a website is not enough to lend material support in another's infringement." That's right perhaps until you throw in the knowledge element, which the DMCA notice provides. Once a website knowingly provides infringing images put there by the site's users, then there is contributory liability for the site. The suit is filed in Washington, which is the Ninth Circuit, so the Napster-Amazon.com cases are the law there. Maybe Brown's got some other cases or arguments in mind. He's a sharp guy.
As I've explained, he has not. He said he needed more facts before he could answer. How could he have answered and have needed more facts before answering? That makes no sense. I provided him with three fact patterns. He is purposefully not answering.
However, as lawyer Evan Brown correctly explains in Brodkin's article, failing to take down works upon receipt of a DMCA notice does not automatically make one guilty of infringement. It just means they can't directly avail themselves of the safe harbors in the DMCA. They can still make plenty of other arguments for why they have not broken the law. And Brown suggests that there are many reasons why they're likely to prevail:
"If I were Twitter, I would not necessarily be all that concerned about Boffoli's claims, based on the facts as they appear in the complaint," Brown said. "It doesn't look like Twitter has materially contributed to the alleged infringement. Courts have held that just providing a website is not enough to lend material support in another's infringement. And I don't see how Twitter is obtaining any direct financial benefit from the alleged infringement. Moreover, I doubt Boffoli will be able to point to any statements on Twitter's part encouraging its users to infringe copyright. If he can't show any of these things, his secondary liability claims would appear to be dead in the water. But the lawsuit is just beginning—maybe he has some great facts that will come out later. I'm skeptical, though."
I don't agree with Evan Brown's assessment of material contribution. If I understand the facts correctly, a Twitter user uploaded a copyrighted image to Twitter's servers, and then the user composed a tweet that included the image. So it's more than just a link to an infringing image that's hosted elsewhere since Twitter actually hosts the image as well as the tweet.
The DMCA safe harbors are not in force since Twitter ignored a takedown notice. I think it's safe to say that Twitter has knowledge of the infringement since it received the takedown notice (which imparts knowledge, actual or constructive). So it boils down to whether Twitter is materially contributing to the infringement. I'd look to the Netcom-Napster-Amazon.com line of cases:
Where a defendant has knowledge of the primary infringer's infringing activities, it will be liable if it “induces, causes or materially contributes to the infringing conduct of” the primary infringer. Gershwin Publishing, 443 F.2d at 1162. Such participation must be substantial. Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp. 616, 625 (N.D.Cal.1993), aff'd, 35 F.3d 1435 (9th Cir.1994); Demetriades v. Kaufmann, 690 F.Supp. 289, 294 (S.D.N.Y.1988).
Providing a service that allows for the automatic distribution of all Usenet postings, infringing and noninfringing, goes well beyond renting a premises to an infringer. See Fonovisa, Inc. v. Cherry Auction, Inc., 847 F.Supp. 1492, 1496 (E.D.Cal.1994) (finding that renting space at swap meet to known bootleggers not “substantial participation” in the infringers' activities). It is more akin to the radio stations that were found liable for rebroadcasting an infringing broadcast. See, e.g., Select Theatres Corp. v. Ronzoni Macaroni Corp., 59 U.S.P.Q. 288, 291 (S.D.N.Y.1943). Netcom allows Erlich's infringing messages to remain on its system and be further distributed to other Usenet servers worldwide. It does not completely relinquish control over how its system is used, unlike a landlord. Thus, it is fair, assuming Netcom is able to take simple measures to prevent further damage to plaintiffs' copyrighted works, to hold Netcom liable for contributory infringement where Netcom has knowledge of Erlich's infringing postings yet continues to aid in the accomplishment of Erlich's purpose of publicly distributing the postings. Accordingly, plaintiffs do raise a genuine issue of material fact as to their theory of contributory infringement as to the postings made after Netcom was on notice of plaintiffs' infringement claim.
Under the facts as found by the district court, Napster materially contributes to the infringing activity. Relying on Fonovisa, the district court concluded that “[w]ithout the support services defendant provides, Napster users could not find and download the music they want with the ease of which defendant boasts.” Napster, 114 F.Supp.2d at 919–20 (“Napster is an integrated service designed to enable users to locate and download MP3 music files.”). We agree that Napster provides “the site and facilities” for direct infringement. See Fonovisa, 76 F.3d at 264; cf. Netcom, 907 F.Supp. at 1372 (“Netcom will be liable for contributory infringement since its failure to cancel [a user's] infringing message and thereby stop an infringing copy from being distributed worldwide constitutes substantial participation.”). The district court correctly applied the reasoning in Fonovisa, and properly found that Napster materially contributes to direct infringement.
Our tests for contributory liability are consistent with the rule set forth in Grokster. We have adopted the general rule set forth in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., namely: “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer,” 443 F.2d 1159, 1162 (2d Cir.1971). See Ellison, 357 F.3d at 1076; Napster, 239 F.3d at 1019; Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir.1996).
We have further refined this test in the context of cyberspace to determine when contributory liability can be imposed on a provider of Internet access or services. See Napster, 239 F.3d at 1019–20. In Napster, we considered claims that the operator of an electronic file sharing system was contributorily liable for assisting individual users to swap copyrighted music files stored on their home computers with other users of the system. Napster, 239 F.3d at 1011–13, 1019–22. We stated that “if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.” Id. at 1021. Because Napster knew of the availability of infringing music files, assisted users in accessing such files, and failed to block access to such files, we concluded that Napster materially contributed to infringement. Id. at 1022.
The Napster test for contributory liability was modeled on the influential district court decision in Religious Technology Center v. Netcom On–Line Communication Services, Inc. (Netcom), 907 F.Supp. 1361, 1365–66 (N.D.Cal.1995). See Napster, 239 F.3d at 1021. In Netcom, a disgruntled former Scientology minister posted allegedly infringing copies of Scientological works on an electronic bulletin board service. Netcom, 907 F.Supp. at 1365–66. The messages were stored on the bulletin board operator's computer, then automatically copied onto Netcom's computer, and from there copied onto other computers comprising “a worldwide community” of electronic bulletin board systems. Id. at 1366–67 & n. 4 (internal quotation omitted). Netcom held that if plaintiffs *1172 could prove that Netcom knew or should have known that the minister infringed plaintiffs' copyrights, “Netcom[would] be liable for contributory infringement since its failure to simply cancel [the former minister's] infringing message and thereby stop an infringing copy from being distributed worldwide constitute[d] substantial participation in [the former minister's] public distribution of the message.” Id. at 1374.
Although neither Napster nor Netcom expressly required a finding of intent, those cases are consistent with Grokster because both decisions ruled that a service provider's knowing failure to prevent infringing actions could be the basis for imposing contributory liability. Under such circumstances, intent may be imputed. In addition, Napster and Netcom are consistent with the longstanding requirement that an actor's contribution to infringement must be material to warrant the imposition of contributory liability. Gershwin, 443 F.2d at 1162. Both Napster and Netcom acknowledge that services or products that facilitate access to websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities. See Napster, 239 F.3d at 1022; Netcom, 907 F.Supp. at 1375. The Supreme Court has acknowledged that “[t]he argument for imposing indirect liability” is particularly “powerful” when individuals using the defendant's software could make a huge number of infringing downloads every day. Grokster, 545 U.S. at 929, 125 S.Ct. 2764. Moreover, copyright holders cannot protect their rights in a meaningful way unless they can hold providers of such services or products accountable for their actions pursuant to a test such as that enunciated in Napster. See id. at 929–30, 125 S.Ct. 2764 (“When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement.”). Accordingly, we hold that a computer system operator can be held contributorily liable if it “has actual knowledge that specific infringing material is available using its system,” Napster, 239 F.3d at 1022, and can “take simple measures to prevent further damage” to copyrighted works, Netcom, 907 F.Supp. at 1375, yet continues to provide access to infringing works.
Since Twitter has knowledge that specific infringing images are available using its system and can take simple measures to prevent infringement yet continues to provide access to the images, it can be held liable as a contributory infringer.
I apologize, Karl. I admit I misremembered the facts.
I'm still waiting for Mike to answer the question that he said he needed more facts to answer. I've supplied the facts, and yet there is no answer.
Mike has not, nor will he ever, actually and directly answer my simple question about his personal beliefs. Mike runs away every single time because he is, fundamentally and relentlessly, a dishonest person.
I know you disagree. No need to say it, but feel free.
On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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It's hilarious to me that you guys, who hate copyright and see noninfringement everywhere you look, are hellbent on seeing my use as infringement. Makes me smile at the duplicity.
On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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Glyn notes that the law in France is different: "That's because under the HADOPI law, it is the owner of the Internet connection who is held responsible for any infringement committed with it, so it's the husband, not the (ex-)wife who has ended up being fined 150 euros (about $200) for negligence."
Not sure what your point is.
On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
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On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Dead. Hardly. I know Mike is obsessing over every word I say about him. He is absolutely reading these posts. You should know.
His complaints about me running off are just too funny. I'm here, ready to go. Mike had to send in the sockpuppets.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
On the post: First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs
Moreover, this case must reinforce the view that HADOPI is a colossal waste of money. In two years of existence, HADOPI has sent out 1.15 million first warnings, 102,854 second notices, and 340 "third strikes". And yet all French government has to show for the 12 million euros it costs to run HADOPI each year is the conviction of one innocent man.
Those facts say to me that it's working quite well. Are you suggesting that unless thousands of people are convicted then it's not working? I don't even begin to understand your point. If thousands of people are being educated and not receiving more strikes so that there's no need to convict them, then it's working perfectly. Do you honestly think success should be measured by convictions?
And if under the law negligence is not legal, then how in the world is this guy "innocent"? That makes zero sense. He's not innocent, he's negligent. This is just silly whining, Glyn. You wouldn't be happy if there were thousands of convictions, yet you're whining about just one. And you're making the intellectually dishonest suggestion that he's somehow innocent while you admit that what he got convicted of is in fact illegal. Give me a break with the pirate-apologism.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Ever the dishonest coward, Mikey. Too ashamed of your own beliefs to discuss them directly with others.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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I'm still here, waiting for you to identify the ONE question I didn't answer, and waiting for you to answer my question.
Why have you run off? Too scared to talk about your beliefs directly?
And please, stop with the sockpuppets already. That's beyond sad.
On the post: Twitter Sued For Failing To Take Down Images Following DMCA Notices
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As I've explained, he has not. He said he needed more facts before he could answer. How could he have answered and have needed more facts before answering? That makes no sense. I provided him with three fact patterns. He is purposefully not answering.
On the post: Twitter Sued For Failing To Take Down Images Following DMCA Notices
The DMCA safe harbors are not in force since Twitter ignored a takedown notice. I think it's safe to say that Twitter has knowledge of the infringement since it received the takedown notice (which imparts knowledge, actual or constructive). So it boils down to whether Twitter is materially contributing to the infringement. I'd look to the Netcom-Napster-Amazon.com line of cases:RTC v. Netcom, 907 F.Supp. 1361, 1375 (N.D. Cal. 1995) (emphasis added).A&M v. Napster, 239 F.3d 1004, 1022 (9th Cir. 2001) (emphasis added).Perfect 10 v. Amazon.com, 508 F.3d 1146, 1171-72 (9th Cir. 2007) (emphasis added).
Since Twitter has knowledge that specific infringing images are available using its system and can take simple measures to prevent infringement yet continues to provide access to the images, it can be held liable as a contributory infringer.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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I'm still waiting for Mike to answer the question that he said he needed more facts to answer. I've supplied the facts, and yet there is no answer.
Mike has not, nor will he ever, actually and directly answer my simple question about his personal beliefs. Mike runs away every single time because he is, fundamentally and relentlessly, a dishonest person.
I know you disagree. No need to say it, but feel free.
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