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.

http://www.lexology.com/library/detail.aspx?g=f98a0ed5-1fff-4a7a-a78b-f5385b4aeed3&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2017-02-08&utm_term=

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

http://www.lexology.com/library/detail.aspx?g=9b239a7b-485e-48eb-84a5-d2e9f8392784

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.

http://www.lexology.com/library/detail.aspx?g=19ee8102-0c80-4a2e-b7e3-0038e11e0205

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.

Sunday Links

Correcting a misconception: a plaintiff is not required to prove that copies are unauthorized.  When you think about it, how would one prove a negative proposition? If there is a contract, either party can prove that there is a contract by producing it. But, if a copyright infringer uploads an illegal copy of an ebook, it would be unreasonable to force the author to provide every contract ever executed to show that there wasn't one with this particular infringer.

This article by McDermott Will and Emery is about the plight of an artist when someone else started selling prints of the artist's works.
http://www.lexology.com/library/detail.aspx?g=595934b7-df7b-4959-9dbd-ddd2dc106099&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-09-30&utm_term=

Baker and Hostetler LLP commence a series comparing how the most popular social media sites respond to complaints from copyright owners about "user generated" copyright infringement on their platforms.
http://www.lexology.com/library/detail.aspx?g=a8400cb9-cf87-4cb4-95dd-2e35df328c0d&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-09-30&utm_term=

It may be a tad depressing reading! The BakerHostelter sidebar had some excellent links, one that particularly upset this author is an account from July 2016 of further difficulties for copyright owners (raising of the legal bar) to prove that a website was wilfully blind to copyright infringement.
http://www.lexology.com/library/detail.aspx?g=59d917d8-b851-4d1c-9e40-e36f345e7a6f

"Red flag knowledge" has long been an issue with the DMCA. Now, it gives even greater protection to websites that apparently knowingly host copyright infringing stuff.

Perhaps it is my bias, or perhaps something is in the air.

McDermott Will and Emery also take a look at willful copyright infringement.
http://www.lexology.com/library/detail.aspx?g=22f36369-0155-45e2-93d4-4d5d5ac0e3ef&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-09-30&utm_term=

If you enjoy The Register, I recommend this:
http://www.theregister.co.uk/2016/07/13/google_piracy_we_really_care/

And also this two-page article (also on The Register) on the unexpected consequences to the set-top box "wars". Who would think that there could be a downside to getting rid of those rented proprietary boxes?
http://www.theregister.co.uk/2016/09/29/fcc_death_vote_golden_age_tv/

Ending on a more positive note, European courts are ruling that hyperlinks to illegally uploaded copyrighted works stored or hosted elsewhere is copyright infringement.

http://www.lexology.com/library/detail.aspx?g=c4ee9be1-8731-44dd-ac35-b5a1c14a2b54&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-09-29&utm_term=

Thanks to Squire Patton Boggs for that!

That's a lot of links, but, as always, this author has brought you only the most interesting out of hundreds of copyright-related topics.

All the best,

Rowena Cherry

Be Careful What You Retweet, Pin, Share, or Like

Inadvertently Liking, Re-Tweeting, or Sharing Infringing ContentIt should be no surprise that much material posted online violates copyright laws. The copyright owner sometimes launches a lawsuit against the person or company that posted the infringing material. The forum – such as YouTube, Twitter, or Facebook – on which the material is posted has typically taken advantage of the safe harbor provisions offered by the Digital Millennium Copyright Act and is, therefore, insulated from any copyright infringement liability stemming from infringing material posted by its users.
But what happens if we – without realizing that the material is infringing - re-tweet, pin, like, or otherwise share infringing content?

http://www.lexology.com/library/detail.aspx?g=93f6f876-002a-4a69-a1aa-6635810c65a0

Excellent article by the law offices of Joy R Butler.

Another interesting legal article about the explosion of copyright infringement and when an OSP does not enjoy Safe Harbor

http://www.lexology.com/library/detail.aspx?g=9cc03161-16fc-4e34-96b9-ab76d694537a&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-11-06&utm_term=

And.... word to the wise, if you are an author with a YouTube presence that you do not actively monitor, check it out. Pirates are using the comments function on videos to post links to infringing sites and illegal copies of your books.

My best wishes,

Rowena Cherry