KaZaA soon to be knocked out ?
Publié le 04/11/2004 par olivier van droogenbroek
An interesting bill has been introduced recently in the US Congress. The Inducing Infringement of Copyrights Act recognizes liability for the “intentional inducement” of copyright. The main targets are the providers of p2p services. Background Pursuant US copyright law p2p service providers do not infringe copyrights directly, but they can be held liable for the…
An interesting bill has been introduced recently in the US Congress. The Inducing Infringement of Copyrights Act recognizes liability for the “intentional inducement” of copyright. The main targets are the providers of p2p services.
Background
Pursuant US copyright law p2p service providers do not infringe copyrights directly, but they can be held liable for the infringements of the users of the service. There are two theories of secondary liability : contributory infringement and vicarious infringement.
Three elements are required to prove contributory infringement: (1) a direct infringement by a primary infringer, (2) knowledge of the infringement and (3) a material contribution to the infringement.
The proof of vicarious infringement requires: (1) a direct infringement by a primary infringer, (2) a direct financial benefit and (3) the right and ability to supervise the infringers.
The theories of secondary liability make it possible for copyright owners to sue providers of means facilitating infringement instead of all the individual infringers.
1. Sony Betamax
During twenty years the standard for contributory infringement has been set by the Supreme Court’s Sony Betamax landmark case. The question to be answered in this case was whether a manufacturer of a VCR could be held liable for the infringing actions of the customers who buy the VCR.
The Court ruled that it was essential to strike a balance between a copyright holder and the rights of others.
The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be noninfringing. Moreover, in order to resolve this case we need not give precise content to the question of how much use is commercially significant.
2. Napster
Napster was the first in a number of cases where the secondary liability of filesharing service providers was examined.
Napster was ruled to have met the requirements for both vicarious and contributory infringement. But it is important to note that Napster was the victim of its own mistakes.
Indeed, Napster had an express reservation of rights policy, stating on its website that it expressly reserved the “right to refuse service and terminate accounts in [its] discretion, including, but not limited to, if Napster believed that user conduct violated applicable law or for any reason in Napster’s sole discretion, with or without cause”. The Napster system employed a proprietary centralized indexing software architecture in which a collective index of available files was maintained on servers it owned and operated. This means Napster clearly had the right and ability to supervise the infringers. The Court of Appeal of the Ninth Circuit also ruled that Napster had failed to demonstrate that its system was capable of substantial noninfringing uses
3. Grokster
As has been reported recently, the Court of Appeal of the Ninth Circuit ruled that providers of p2p services can not be held secondary liable because of today’s p2p networks’s decentralized architecture and the substantial noninfringing uses of such services (overturning Napster on that matter). However, the Court – quoting the Supreme Court in Sony Betamax – stated that
The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.
The Inducing Infringement of Copyrights Act
The bill radically extends the scope of secondary liability theories. Indeed, it does not take into account substantial noninfringing uses (which is replaced by the “reasonable person” standard) and the impossibility to control the users will no longer be accepted as a defense.
Although p2p service providers are said to be the main targets, Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer. Could this bill be the end for mp3 players (remember the Rio controversy) ? And what about lawyers advising clients on this matter ?
Following the numerous critics regarding the bill, the US Copyright Office proposed an alternative document. The Copyright Office’s “discussion draft” limits liability to certain overt acts. Not overt is distributing any dissemination technology capable of substantial noninfringing uses knowing that it can be used for infringing purposes, so long as that technology is not designed to be used for infringing purposes. Pursuant this draft Apple & co. will no longer have to fear legal action.
However, in case the draft is to become law the question rises whether the safe harbor regime of section 512 Title 17 of the US Code can still have effect in certain cases. actively interfering with copyright holders’ efforts to detect infringing uses of dissemination technology and enforce their copyright against those uses will be considered an infringing overt act. Verizon’s victory over the entertainment industry may well have been of short term as this provision clears the path for the industry to force ISPs to reveal the identity of their subscribers using p2p services.
The final answer to this complex issue will be given by the end of this year.