Google and Facebook’s new tactic in the tech wars â€” It’s a pretty shady tactic.
Copyright and the Little Guy Part 2 â€“ Copyright and Competition Redux â€” A great follow up from the Cynical Musician on why, contrary to some assertions, copyright is in fact more important to individuals and SME’s than large corporations.
Amazon decides it actually does need licenses for music â€” Kudos to Amazon for securing licenses that will allow some pretty cool (and legal) features for its cloud storage services. According to Ars Technica, “Amazon’s new scan-and-match service copies customer’s iTunes and Windows Media Player music libraries and matches songs to those in Amazon’s own library of 20 million songs, populating your cloud player so you can listen anywhere. ‘All matched songsâ€“even music purchased from iTunes or ripped from CDsâ€“are instantly made available in Cloud Player and are upgraded for free to high-quality 256 Kbps audio,’ an Amazon press release wrote.”
Craigslist’s Big Bluff â€” The popular online classifieds site changed its TOS to require users to grant an exclusive license in their postings to the site,Â in part to assist in recent efforts to combat third-party sites from using its listings. GigaOM speaks to IP prof Richard Gold, who doesn’t believe the move stands on solid legal ground.
Flava Works v. Gunter â€” The Seventh Circuit vacates a preliminary injunction against social bookmarking site myVidster. I’ll have a longer writeup on this decision next week, but for now, any thoughts?
I really enjoy the original reporting over at Ars, they generally have a level head when it comes to these issues. Sadly, the comments section has generally been overtaken by piracy apologists… I’ve tried reasoning with them before to no avail. Seems to the audience that the tech sphere can do no wrong.
Flava Works v. Gunter â€” The Seventh Circuit vacates a preliminary injunction against social bookmarking site myVidster. Iâ€™ll have a longer writeup on this decision next week, but for now, any thoughts?
1. Preliminary Injunctions
I think that other than the importation of the eBay preliminary injunction standard into copyright cases in the 7th Circuit, the opinion is dicta. The district court tried to use the old standard if the plaintiff can show a likelihood of success on the merits, then irreparable harm may be presumed. The Supreme Court in eBay said there is no such presumption in trademark cases for permanent injunctions. That analysis, I think, clearly applies to preliminary injunctions in copyright cases too, so I think Judge Posner is correct on that score. Since the district court failed to consider irreparable harm or to properly balance equitable considerations, that alone was reversible error sufficient to vacate the injunction. The rest of Posnerâ€™s musings are therefore not necessary to the holding and are thus dicta.
The Second Circuitâ€™s explanation of the preliminary injunction standard is significantly more helpful than Judge Posnerâ€™s:
Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010).
Since Judge Posner was importing the test into the 7th Circuit, he could have taken the time to spell it out like the 2d Circuit did in Salinger.
2. Contributory Infringement
The district courtâ€™s formulation of the contributory infringement test derived from Gershwin, 443 F.2d at 1162, looked fine to me:
Flava Works, Inc. v. Gunter, 2011 WL 3205399 at *7 (N.D. Ill. July 27, 2011).
The district court held that the first element, third-party direct infringement, was a no-brainerâ€”myVidster users, without authorization, were copying and distributing plaintiffâ€™s copyrighted works. The district court found that the knowledge element was also satisfied here (coincidentally quoting Judge Posnerâ€™s opinion in In Re Aimster, 334 F.3d at 650) because by ignoring DMCA takedown notices, myVidster had constructive knowledge of the infringement complained of therein. As to material contribution, the district court found that by providing the site, the backup service, the download feature, the encouragement of sharing, and the lack of repeat infringer policy, myVidster had contributed materially to the infringement. Adding it all up, the district court found a likelihood of success on the merits for plaintiff.
Judge Posner had some silly nitpicking about the Gershwin standard for contributory infringement, though I do like the conciseness of his version:
That formulation does seem to omit the knowledge element, though, which is perplexing. Is there strict liability for contributory infringement? Thatâ€™s news to me. And if his test tacitly assumes knowledge, then Iâ€™m not sure that test is any better. Why not stick to Gershwin and leave well enough alone?
Judge Posnerâ€™s application of his test is equally perplexing: Having deleted the knowledge requirement from the test, he then ignores the import of myVidster having ignored takedown notices. The recipient of a well-formed takedown notice is deemed to have knowledge that the complained of link is infringing. Failure to remove the link means liability for whatever infringement the link causes.
Judge Posner states:
But I think that misses the point: myVidster may not be encouraging the uploaders of the copyright works, but it is nonetheless responsible for whatever infringement occurs via a link it has failed to remove once a DMCA takedown notice has been issued complaining of that link. The DMCA notice imparts knowledge, and the myVidster website no doubt materially contributes to the infringement by collecting the infringing links. The fact that the uploaders, and not the users, are the direct infringers is irrelevant. What matters is that myVidster knowingly provided infringing links.
That Judge Posner ignores the knowledge element comes through in this paragraph:
But this interpretation doesnâ€™t expand the concept of contributory liability to any link to infringing material. There has to be knowledge as well. Thatâ€™s the whole point of the DMCA takedown notice: the notice is deemed to impart knowledge. Absent the notice, and absent other knowledge, there is no liability. I think Judge Posner really screwed this part up, and his deleting the knowledge requirement from the test for contributory infringement is just wrong doctrinally.
3. Tertiary Infringement
Iâ€™m glad Judge Posner says explicitly that thereâ€™s no such thing as a tertiary infringer, as Google, Facebook, Professor Goldman, and others often allude to. Youâ€™re either an infringer, a contributory infringer (which includes inducement), a vicarious infringer, or a noninfringer. Period.
Iâ€™ve got other thoughts too, but duty calls (and sorry too about any typos or grammatical errors, I don’t have time to proofread right now). 🙂
“The Supreme Court in eBay said there is no such presumption in trademark cases for permanent injunctions.”
Should have said patent cases, not trademark cases.
Iâ€™m looking at the opinion again, and a few things jump out at me…
Judge Posner says:
This doesnâ€™t seem right to me since itâ€™s not analogous to sneaking into a movie theater without paying. The movie theater has a legitimate copy of the film and is showing it legally to paying customers. The person sneaking into the theater doesnâ€™t cause an illegal performance to occur like someone who clicks on an infringing link does. I donâ€™t think this analogy to meatspace makes much sense.
Say someone uploads an infringing video to the internet. A user then embeds that video on the myVidster website. And then someone else clicks on that link and watches a stream of that video. Whoâ€™s liable for what? I think the uploader is directly liable for violating the reproduction right by uploading a copy to the internet. Judge Posner, I think, would agree. But where I think Judge Posner gets it wrong is in saying that the party embedding the video has done no wrong. That party is a contributory infringer since it materially contributes to and has knowledge of the infringement (the entire purpose of providing the embed is to facilitate infringement). And if myVidster had knowledge that the embed was infringing and failed to remove it, it would also be a contributory infringer. The party that clicks on the embed to watch the video is not free from liability either, which is (strangely) what Judge Posner claims. I think that party is a direct infringer (though Iâ€™m by no means convinced of it), as is the party that serves the video (I am convinced of this one).
I think of it like this: If two people are connected p2p and one uploads a file to the other who downloads it, both are direct infringers. The uploader has violated the distribution right, Section 106(3), and the downloader has violated the reproduction right, Section 106(1). The same simultaneous action (uploading/downloading) is in fact two separate, direct infringements by two separate parties. I think itâ€™s the same with someone streaming an infringing video on the internet. The party serving the video and the party watching the video are both direct infringers of the public performance right, Section 106(4). I donâ€™t buy that the party watching the stream hasnâ€™t violated copyright law. The analogy to the person sneaking into the theater doesnâ€™t work because there the film was being shown legally, and it was being shown regardless of the conduct of the person sneaking in. With streaming, by contrast, the video isnâ€™t legal, and the person watching it, by their affirmative conduct, makes the stream occurâ€”had they not initiated the video stream, they would not be able to watch it. The movie theater is going to show the movie whether the person sneaks in or not; the stream wonâ€™t happen unless the person makes it happen.
Later in the opinion, Judge Posner acknowledges that myVidster could be a contributory infringer of the public performance right:
The part I bolded is quite important: There was no evidence that anyone actually clicked on and watched any of plaintiffâ€™s videos using myVidster. Therefore, there was no streaming for myVidster to be contributing to. Had the record shown that people were using myVidster to watch plaintiffâ€™s videos, Posner appears to have been ready to call that contributory infringementâ€”which it is. I disagree with Judge Posner though that myVidster doesnâ€™t provide a market for pirated works. Thatâ€™s exactly what it does, and it profits from it with ads surrounding the infringing streams. Just because myVidster isnâ€™t incentivizing the uploaders of the infringing works (and Iâ€™m not sure how he determined that), it is nonetheless creating a place where such works are collected and presented for users to easily find and view. The benefit to users and to myVidster is obvious. The users donâ€™t spend any money, but thatâ€™s the whole pointâ€”but for the infringing stream, they would have to spend money to see the same video. The users are making money for myVidster via the advertising on the site. Maybe market means something other than what I think it means, but to me, myVidster is in the business of creating a market for infringement.
Iâ€™m still shaking my head at this opinion. It seems like Judge Posner has passed up an excellent opportunity to clarify the doctrine, but instead, heâ€™s only mucked it up worse than it was before. Terry, I look forward to seeing what you come up with when you write about it. Hopefully you can make more sense of it than I can.