On 3/24/00, T. R. Halvorson <pastel[_at_]btigate.com> wrote:
>
> On Thu, 23 Mar 2000, Bob Stock <bstock[_at_]mindspring.com> wrote:
> >
> > the court found that there was no connection between the website
> > operator(s) and the Tanners
>
> The law uses two terms: vicarious liability and contributory
> infringement. You have arched those two distinct terms with the
> single term "connection." Denotatively speaking, that use of the
> term "connection" is a gloss. It glosses over the distinction
> between the two terms. In the context of the case, it is a gloss
> that misrepresents what the court said.
Hey, if you think anyone has "glossed" over anything, then it's the court, not me. "Connection" is the court's term.
I'll repeat (but for the last time) that the court considered contributory infringement only. There was never any question of vicarious liability. Look at the headings of the opinion. The main heading (I) is "Likelihood of Plaintiff Prevailing on the Merits." Under that heading are two subheadings: A is "Direct Infringement," and B is "Contributory Infringement." After that comes the second maini heading (II), which is "Irreparable Injury." There is no discussion of vicarious liability except in passing because of quotes from cases about the two kinds of liability.
The word "connection" appeared in the court's discussion of the possibility of contributory liability with respect to the website operators' direct infringement; the court devoted one short paragraph to that possibility and dismissed it:
"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."
(emphasis added)
> If by "connection" you mean benefits and control, what you say is
> true; the court found no benefits or control, and hence no vicarious
> liability. If by "connection" you mean knowledge and participation,
> what you say is false; the court found knowledge and participation,
> and hence contributory infringement.
No, the court found the Tanners did NOT contribute to the website operators' infringement.
> When I went to sites in Australia and The Netherlands to read and
> save copies of the whole Handbook for the sake of ascertaining and
> documenting facts as steps in preparing an article on the case, I
> had knowledge that the copies I would be reading and saving would
> be directly infringing copies. Still I do not worry about being a
> copyright infringer under the contibutory infringement ruling of
> Judge Campbell. Why not? Because I do not have participation.
Huh? You were a direct infringer, according to Judge Campbell. Maybe what you did was fair use because of your article. What does contributory liability have to do with what you did? You copied the work.
> Is the difference between innocent infringement and contributory
> infringement so subtle. One contributes. The other does not. I do
> not understand why the New York Times, CNN, About.com, EFF, and others
> cannot see the difference between contributing and not contributing.
> Nor do I undertand why, since the law calls innocent infringers
> innocent, they alarm innocent people with fear that the law will
> treat them as guilty.
Huh again. Innocent infringement has nothing to do with contributory liability. Because contributory liability requires knowledge, the contributory infringer cannot be innocent. Innocent infringement is only related to direct infringement. As the court noted, so-called innocent infringement permits a court to reduce the amount of statutory damages (it also has an evidentiary context in terms of copyright notice). The court brought this concept up in the context of a user's direct infringement without knowledge of what he was downloading.
And this is not a case of "guilty" or not guilty but liable or not liable, and the innocent infringer is still liable.
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