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.

There Are Limits (to Safe Harbor), Pallante Protest, And More....

The legal blog of  Weil Gotshal & Manges LLP  (not a blog I've seen before) provides a detailed and fascinating --at least for copyright wonks-- article about "red flag" knowledge, and when an ISP or OSP may be said to have knowledge of copyright infringement, even when a takedown notice has not been submitted.

http://www.lexology.com/library/detail.aspx?g=ddf71645-cedf-442b-a4a8-6345fb365fd2&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2016-12-02&utm_term=

Also former Registers of Copyrights Ralph Oman and MaryBeth Peters have written a joint letter to the House and Senate Judiciary Committees concerning the recent treatment of former Register of Copyrights Maria Pallante.

https://artistrightswatch.com/2016/11/30/must-read-two-former-u-s-copyright-heads-defend-maria-pallante-from-sacking-by-rogue-librarian-of-congress/

It has been alleged that Maria Pallante was removed from her prestigous work, and assigned to policy planning for the Copyright Office gift shop. Some have allegedly speculated that the reason for Register Pallante's forced career move was that a certain search giant company's lobbyists and former search giant company's employees who now work for the current administration object to Register Pallante's alleged opposition to new regulations that benefit primarily Google, and that are disruptive and costly to copyright owners.

More articles on this scandal can be found on the copyrightalliance.org website.

Also on copyrightalliance.org are a series of short videos by copyright owners about what copyright and copyright protection means to them.

http://copyrightalliance.org/education/videos/copyright-support-career/

Submissions are welcome and being sought by the copyright alliance.

For European visitors to this blog, please be aware that Google puts cookies on your computers and other devices for the purpose of identifying your susceptibility to specific advertising. The authors of this blog have no control over this, but we have a duty to remind you of the cookies from time to time.

Other reminders: as of December 1st 2016, website owners who accept user generated content from others must register their copyright agent with the Copyright Office electronically.

http://www.lexology.com/library/detail.aspx?g=7ab96530-bb57-4072-b753-bd226dbb0f87&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-12-02&utm_term=

December 9th is the USPTO open meeting  on the digital marketplace. The Authors Guild will be attending.

All the best,
Rowena Cherry