Sunday, February 12, 2017

When Is An Infringer Not An Infringer?

You know the old riddle: "When is a door not a door?" "When it's ajar." (A jar).

For too long, Safe-Harbor-seeking "tech" companies --that rely on free money from exploiting copyright infringement by their often anonymous users-- have been protected by allegedly left-leaning Courts, and copyright owners have been frustrated.

Some of the allegedly ridiculously, maddeningly progressive judges have argued that a copyright owner can only make a case against the unknown and elusive copyright infringer who originally uploaded the copyright infringing material in question to the Internet. This (according to their alleged folly) would not include side-loaders, or persons who snagged illegal stuff from the Internet and then shared with others. It would not include downloaders. It would not include allegedly immoral or amoral idiots who firmly believe that "information" "wants" to be free and that anything on the Internet is "free to snag".

Moreover, some allegedly truly overreaching copyleftist judges have tried to suggest that beleaguered copyright owners need to prove that the copyright infringers knowingly and intentionally infringed copyright. Others of the same ilk, allegedly, would like to say that an infringer is only an infringer if a Court has found him (or her) to be an infringer.

Thank goodness the Second Circuit has more sense! It has found that copyright owners do not have to prove "unlawful intent" if they want to invoke the DMCA. The Second Circuit has found that "downloading" can be copyright infringement (and uploading can be copyright infringement).

As for repeat infringing...? Good sense and the plain words matter again. To be a "repeat infringer" one must "repeatedly" upload or download copyright infringing material...  (The Second Circuit added "for personal use". Hopefully, there in no loophole there for those who upload or download other people's copyrighted material for profit).

For a more moderately worded and legal analysis, please take a look at J. Alexander Lawrence's excellent blog under the aegis of the law firm Morrison & Foerster LLP.

Not surprisingly, Dropbox, Facebook, Google, Pinterest and Twitter are not happy with the Second Circuit's opinions in this matter.

Another blog article of interest is by Ulrika E. Mattsson of McDermott Will & Emery

And then, there is ebook lending.  Europe is more fair to authors than is the USA. The recent Directive states that the author (of an ebook) shall have the exclusive right to authorize or prohibit rentals and loans of their book(s).  However,  member states (in Europe) may derogate from that exclusive right in respect to the PUBLIC LENDING, providing that authors receive fair remuneration.

For more info, read the article by  Greenberg Traurig LLP

Unfortunately, as far as I know, authors in the USA do not get paid when sites that profit from ebook lending by virtue (??) of paid advertisements and Amazon affiliate commissions link up Amazon customers who wish to lend an ebook to a stranger (why???) with strangers who wish to borrow a particular title from a stranger instead of buying it or borrowing it from a public library.  I tell you, I fail to see how that sort of arrangement is in any way similar to handing a favorite paperback to a close friend because the lender suspects that the friend would never pick up that book for themselves.

All the best,

Rowena Cherry

PS. Some writers do not know this, but if one is going to write something that might hurt someone else's feelings, it's a good idea to sprinkle "allegedly" liberally.

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