On 3/22/2000, T. R. Halvorson <pastel[_at_]btigate.com> wrote:
>
> On Tue, 21 Mar 2000, Bob Stock <bstock[_at_]mindspring.com> wrote:
> >
> > The court considered two possible direct infringers (direct
> > infringement is required for a finding of contributory liability):
> > the owners of the three websites and the users of the three
> > websites. The court held that there could be no contributory
> > infringment predicated on direct infringement by the website
> > owners, but that there could be contributory liability predicated
> > on direct infringment by users. If you look at the headings in
> > the opinion, you will see that in both instances the court was
> > considering only contributory liability.
>
> You have identified an area that could become the focus of a lot of
> the argument in the case. Is it a direct infringement under the law
> of Australia or The Netherlands to post the whole work on websites
> in those respective countries? If not, without a direct infringement
> by those websites, can Utah Lighthouse Ministry be viewed as a
> contributory infringer? In isolation, we might expect the answer to
> be "no." In the whole context of this case, it is more difficult to
> predict what the Tenth Circuit might do.
Reread my message. Regardless of whether the Australian website infringed or not, the court found that there was no connection between the website operator(s) and the Tanners:
"The evidence now before the court indicates that there is no direct relationship between the defendants and the people who operate the three websites. The defendants did not provide the website operators with the plaintiff's copyrighted material, nor are the defendants receiving any kind of compensation from them. The only connection between the defendants and those who operate the three websites appears to be the information defendants have posted on their website concerning the infringing sites. Based on this scant evidence, the court concludes that plaintiff has not shown that defendants contributed to the infringing action of those who operate the infringing websites."
Instead, the contributory liability was based on the alleged direct infringement by users of those websites; and the court, in a controversial part of the opinion, found that there was infringement by users accessing the websites. The court based this on the fact that browsers copy downloaded web material into the computer's memory.
But what are the implications of such a holding? Most people operate on the assumption that they do not infringe website copyrights by simply browsing them. This could be grounded in a theory of implied consent. That's fine when what you're downloading is copyrighted by the website owner, but what happens when the material is copyrighted by someone else? Still probably okay if the website operator has permission to use the copyrighted material on his website. But what happens, as here, when the operator does not have permission of the copyright owner? There is no doubt implied consent by the operator, but his consent counts for zilch. What are we left with but fair use? And if there is no fair use, then anytime a user browses a website that has pirated stuff on it, even without knowing it in advance, he is liable. Because copyright law is mostly strict liability, this is a pretty harsh result, and in my own view, not a good one. The court acknowledged this in a footnote:
"Although this seems harsh, the Copyright Act has provided a safeguard for innocent infringers. Where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages. ..." 17 U.S.C. sec. 504(c)(2)."
But that isn't much comfort to the many users who unknowingly browse such a site.
> What do you think: if the Tenth Circuit affirms the District Court,
> will that destroy the web as it exists today?
Absolutely, T.R., as soon as the Tenth Circuit's opinion hits the airwaves, the web will instantly collapse. :-)
There are many things about the district court opinion that I think are wrong. However, IF the 10th Circuit affirms (and the case may settle in which case the district opinion will stand), the web will continue to limp along. It'll take more than the 10th circuit to destroy the web.
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