At 08:45 PM 10/12/96 -0400, Matthew Ghio wrote:
gbroiles@netbox.com (Greg Broiles) wrote:
The SPA has apparently adopted two relatively aggressive litigation strategies - putting ISP's in the position of disclosing otherwise confidential customer information or being sued themselves, and treating peripheral data about copyrighted works like copyrighted works themselves (e.g., serial numbers). Particularly interesting is that they seem to be claiming that a *link* to a pirate FTP site is itself infringing (potentially contributory infringement).
Claiming that a link to a pirate FTP site is illegal, is a fairly difficult position to defend. It's not illegal to say "someone is selling stolen property on the corner of First Street downtown". It's just a statement of fact. They could try to argue that there was some intent to commit a crime... but they'd have to have some real proof of that.
We're not talking about a crime here, but a civil action. There is a doctrine in copyright law called contributory infringement, whereby a party who intentionally helps another party infringe on a third party's copyright can be held liable as a contributory infringer. In the Ninth Circuit, the standard for contributory infringement is "[o]ne who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer". _Fonovisa v. Cherry Auction_ 96 C.D.O.S. 517 (CA9, 1996) <http://ming.law.vill.edu/Fed-Ct/Circuit/9th/opinions/9415717.htm>, citing to _Universal City Studios v. Sony Corp_, 659 F.2d 963, 975 (CA9, 1981), rev'd on other grounds 464 U.S. 417 (1984), adopting the standard from _Gershwin Publishing v. Columbia Artists_ 443 F.2d 1159 (CA2, 1971). California is within the Ninth Circuit; I presume that the suit against C2 was filed in California (probably Oakland), but I might be wrong.
Their claim that "peripheral data" is illegal is a rather novel idea, and not supported (to my knowledge) by precedent. I don't think anyone could argue that a serial number or password is by itself worthy of copyright protection, since it lacks any creative expression, so they are claiming it is "indirect infringement".
Yes, this is the basic thrust of contributory infringement liability - that the defendant had an important part to play in the fact that infringement took place, without being the direct infringer. Contributory infringement (and its kissing cousin, vicarious infringement, whereby a person under the defendant's control infringes to the benefit of the defendant) are supported by precedent and have been for several years. For example: _Fonovisa v. Cherry Auction_, supra, where defendant swap meet operator leased space to vendors who sold illegitimate copies of musical works, and defendant was aware that those sales were taking place, plaintiffs had stated a claim for contributory infringement sufficient to survive Fed.Rul.Civ.Pro 12(b)(6) motion. _Sega v. Maphia_ 857 F.Supp. 679 (N.D.Cal. 1994), where defendant BBS sysops' role in "copying, including provision of facilities, direction, knowledge and encouragement" was sufficient to establish a prima facie case of contributory infringement; _ITSI TV Productions v. Cal. Auth. of Racing Fairs_ 785 F.Supp. 854 (E.D.Cal. 1992), finding no domestic contributory infringement where plaintiff had no evidence of defendant's mental state or knowledge with respect to direct infringements allegedly facilitated in Mexico, and hence no subject matter jurisdiction; _Demetriades v. Kaufmann_ 690 F.Supp. 289 (S.D.N.Y. 1988), adopting the _Gershwin_ standard, indicating ".. just as benefit and control are the signposts of vicarious liability, so are knowledge and participation the touchstones of contributory infringement", rejecting a theory of contributory infringement against defendants who only made two phone calls to ask about copying of architectural plans and did not provide the means or facilities for the actual copying; _Gershwin Publishing v. Columbia Artists Management_ 443 F.2d 1159 (CA2, 1971), finding contributory infringement where concert promoter generated demand for concerts, collected fees from performers who foreseeably performed copyrighted works without license, and collected payments from independent organizations it created to produce those shows; The famous (well, sort of :) _Universal City Studios v. Sony_ case where the Supreme Court ruled that "time-shifting" videotaping of TV shows was not an infringement was based on a contributory infringement theory. It would have been impractical for Universal City Studios to find and sue individuals who taped occasional TV shows for later viewing; so instead they went after someone worth suing, the people who made the VCRs. The language in the SPA's press release - "Piracy has taken many forms on the Internet. These include making unauthorized copies of software available for download, the posting of serial numbers, cracker and hacker utilities and links to pirate FTP sites. Although many believe piracy is limited to "warez" or illegal copies of software, it extends beyond that narrow definition. Under the law, anyone who knows -- or should have known -- of the infringement and who assists, encourages or induces the infringement is liable for indirect infringement. In each of the actions SPA filed, at least two of the above infringements were present." seems to imply that they may be thinking of contributory contributory infringement - e.g., if (directly) distributing serial numbers or cracking software is contributory infringement*, materially contributing to that material contribution is also infringement. But this seems awfully attenuated from the actual harm. (I don't see much controversy about the idea that putting copyright-protected software up for FTP without the copyright holder's permission is illegitimate; and the notion that merely providing a link to someone else's site is infringement (or even a "material contribution") seems to go much too far. Is a link to a site which links to a site which infringes an infringement? How many links is enough to escape liability? How many links are there between any two web pages, cf. "six degrees of separation"? :) * (because it "materially contributes" to the creation of an unauthorized copy, since the copy of a program being executed in RAM is distinct from an on-disk copy and without cracking software or serial numbers there will be no RAM copy and potentially no initial infringement. _MAI v. Peak_ 991 F.2d 511, 518 (CA9, 1993) cert dismissed 114 S.Ct. 671 (1994) and _Triad Systems v. Southeastern Express_ 95 Daily Journal D.A.R. 11821, 95 CDOS 6890 (August 31, 1995), also see <http://www.io.com/~gbroiles/triad.html> for my own crankiness about _Triad_)
A few months ago I saw Sameer grumbling about people "not paying for Apache-SSL". Now SPA claims he's operating an ISP to promote piracy. So first he's a software publisher and now he's a software pirate. Uh, yeah, whatever. Obviously SPA is on a PR campaign here which defies all conventional logic.
It looks to me like they're trying to achieve results through fear and intimidation that they can't reach via persuasion; e.g., they are trying to create a climate where ISP's turn over user information without a fuss because they don't want to be sued themselves; and where users (and home page "publishers" or authors) are afraid to even discuss infringement, or do anything even close to the conceptual lines between fair use, noncommercial alterations of works (a la _Galoob v. Nintendo_ 964 F.2d 965 (CA9, 1992), where defendants' marketed a "Game Genie" which altered the play of Nintendo cartridges used in concert with it, held to be noninfringing), and infringement. There are some situations where "cracker" software cannot be characterized as inherently illegitimate - many people may want to disable copy protection on software they've legitimately purchased (or "licensed", if that's your view on the shrink wrap question) because it's annoying or incompatible with their hardware configuration. A person with a legitimate copy of software on CD-ROM may want to use it on their non-CD capable laptop, or use it over a nonstandard network. For example, my legitimate copy of Warcraft II won't run unless it sees its parent CD in my CD-ROM drive; which means I can't start a music CD of my choice in the CD-ROM drive and then run my legal copy of Warcraft. (But I probably should be working anyway.) Assuming the user is otherwise playing nicely (e.g., one license per user, blah blah blah) there's no reason to think that disabling copy protection is somehow illegitimate. But it's getting late. More tomorrow. -- Greg Broiles | "We pretend to be their friends, gbroiles@netbox.com | but they fuck with our heads." http://www.io.com/~gbroiles | |