Secondary Liability: When you want to make someone liable for facilities.
The basic P2P software is not illegal. It’s the way it’s being used that’s the problem.
In the US, focus upon providers of services. In the UK, more on individual.
Compare – Contrast with earlier distribution systems
1709 Following statute, they have been trying to protect copyright.
The publisher is potentially less important than previously is the case.
Re User
No surprise that law goes against people downloading reuser files, as the law works
this way.
Is copyright law appropriate in this context?
Levy system. Feeds back money to author?
Individual payment systems.
Contractual systems.
We don’t need to use copyright as it traditionally is.
Move away from traditional models.
I-tunes only became popular following the decline of p2p file sharing.
Copyright law affected way markets operate.
Itunes acting as publisher. Traditional world encouraged.
Cloud computing moved in, but it’s not just for file sharing.
Why have it?
Thought to be more secure than other technologies.
If uni severs are down, you can’t access information.
File sharing though to be me resilient. You don’t depend on only one source.
Skype
New versions of MS office etc
Cloud technology
P2P technology present in them in some form.
Because of the P2P copyright cases brought earlier, the technology’s development
has been hindered.
SECONDARY INFRINGEMENT
Vicarious Copyright Infringement:
Strict Liability
2 main reqirements
Establish
primary infringement
Direct financial benefit
You need right and ability to supervise infringers.
Contributory Copyright infringement
You need to demonstrate:
Knowledge
Material contribution
Specific knowledge. You have to list all the files that the user has breached
copyright.
You need to list them and provide list to service provider.
Pretty much an impossible hurdle to get over.
Constructive knowledge: Someone has been going about the service. I want you to
go out and stop them.
People prefer this.
The legal mechanisms used for secondary liability in relation to p2p
The Duty to Patrol and Control
Judge Patel - “However, the court finds that the New Artist Program accounts for a
small portion of Napster use and did not become central to defendant's business
strategy until this action made it convenient to give the program top billing.”
Judge Patel told Napster that they had to be 99.9% efficient in preventing
infringements on their network. Napster couldn’t meet that requirement. One of the
reasons why it ws closed.
In th circuit court, Napster tried to argue that it coldn’t patrol and control the service.
Central indexing service.
Was said that they were limited in what they could do in controlling the service.
Ultimately, napster was able to control to carry on its network.
“The district court, however, failed to recognize that the boundaries of the premises
that Napster "controls and patrols" are limited … Napster's reserved "right and
ability" to police is cabined by the system's current architecture. As shown by the
record, the Napster system does not "read" the content of indexed files, other than to
check that they are in the proper MP3 format.”
A & M Records, Inc. v. Napster, Inc 239 F.3d 1004 (Court of Appeals, 9th Circuit
2001) – Judge Beezer
Response to that was putting ones head in the sand/
•In re Aimster Copyright Litigation 252 F.Supp.2d 634 (N.D.Ill.,2002).
“It is also disingenuous of Defendants to suggest that they lack the requisite level of
knowledge when their putative ignorance is due entirely to an encryption scheme
that they themselves put in place” at 651
Encrypted so people who used aimster wouldn’t know what is going on. How
network operated was disguised.
The UK position
Secondary Infringement
•Importation
•S22 CDPA 1988 “The copyright in a work is infringed by a person who,
without the licence of the copyright owner, imports into the United Kingdom,
otherwise than for his own private and domestic use, an article which is, and
which he knows or has reason to believe is, an infringing copy of the work.”
•s23 CDPA 1988 The copyright in a work is infringed by a person who, without
the licence of the copyright owner—
•(a) possesses in the course of a business,
•(b) sells or lets for hire, or offers or exposes for sale or hire,
•(c) in the course of a business exhibits in public or distributes, or
•(d) distributes otherwise than in the course of a business to such an extent as
to affect prejudicially the owner of the copyright, an article which is, and which
he knows or has reason to believe is, an infringing copy of the work.
•II. Providing means for making infringing copies
•s.24 (1) Copyright in a work is infringed by a person who, without the licence
of the copyright owner—
•(a) makes
•(b) imports into the United Kingdom,
•(c) possesses in the course of a business, or
•(d) sells or lets for hire, or offers or exposes for sale or hire,
•an article specifically designed or adapted for making copies of that work,
knowing or having reason to believe that it is to be used to make infringing
copies.
•s.24(2) Copyright in a work is infringed by a person who without the licence of
the copyright owner transmits the work by means of a telecommunications
system (otherwise than by [communication to the public]), knowing or having
reason to believe that infringing copies of the work will be made by means of
the reception of the transmission in the United Kingdom or elsewhere.
Knolwedge
“which he knows or has reason to believe”
LA Gear Inc v Hi-Tec Sports PLC [1992] FSR 121
Someone had been at a tradeshow. Had infringing shoes under trade counter.
However, people knew that they were there.
Deemed that this was sufficien to meet requirements for liability.
Issue of selling overcame.
Hutchinson Personal Communications v Hook Advertising [1995] FSR 365
Rabbit logo used for Hutchinson phones. They employed advertising to come
up with logo. There was a change of ownership and they wanted to ......up the
contract they had.
Issue relating to knowledge was that these logos were used in banks.
Specific lists had to be provided for each infringement.
When we are looking at CDMA provisions, it’s quite possible that we need to look at
specific lists of infringements.
Also mentioned to how long somebody needs to look at infringement and to act upon
it.
14 day period that should lapse for someone to remove a file.
A long period of time though. Someone could copy the file and transfer it along a
long chain.
ZYX Music GmbH v King [1997] 2 AllER 129
Case where there was a music manager and he should have known
infringement was occurring.
He should have known that by using this work, he would have infringed
someone elses work.
Shows that knowledge can be constructed in a way that is reasonably flexible.
Shows that knowledge can e a reasonable flexible context that you can use to
capture people.
Pensher Security Door Co Ltd v Sunderland City Council [2000] RPC 249, CA
Concerned infringing doors.
Councl said to someone,we want more copies of something used in other
doors.
You can have copyright for doors.
You can uise knowledge to favour right holders, but you’ve got issues of the
14 days period etc.
Filtering
US cases:
•A&M Records, Inc. v. Napster, Inc. Not Reported in F.Supp.2d, 2001 WL 227083
(N.D.Cal.,2001).
It was said that a filtering system should be implemented in the napster service.
2007 grokster case.
Issue of filtering and fingerprinting came up.
•Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. 518 F.Supp.2d 1197
(C.D.Cal.,2007).
Reformed grokster. Making it fully legal.
This grokster case. It was said, for this grokster to avoid future liability, they should
introduce technologies such as fingerprinting, to avoid future infringements.
2 ECJ cases on issue of filtering.
•CJEU:
•C-70/10 Scarlet Extended SA v SABAM [2012] ECDR 4
•C-360/10 SABAM v Netlog NV [2012] 2 CMLR 18
Action against ISP.
ECJ said in these cases... Supported idea of filtering.
ECJ has been against idea that the filtering system should control everything.
However, it was necessary to limit no of copyright infringements that can
occur.
Point is thatidea of filtering approved by ECJ.
Filtering is an important area.
C. Staple item of commerce doctrine
It is possible to argue that
The US Approach – Fair Use
•§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or phonorecords or
by any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair use the factors to be
considered shall include—
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted
work.
Sony v Universal City Studios 464 U.S. 417
(1984) US Supreme Court
Issue of time shifting. Beta max VHS tape
recorder. Ca change time without infringing
opyright.
US court said that such recorders could be
used for a significant amt of non infringing
purposes.
Comes from Patent Law:
Application in Grokster:
Argument made that Grokster allows
significant non infringing uses by copyright.
The argument was slightly wonky as:
In the US supreme court, grokster lost.