Levity and Danger
posted by Frank Pasquale
Andrew Sullivan has been doing a very funny series on “Worst 80s videos;” I think “We Built This City” by Jefferson Starship (nee Airplane) wins, with a close second from Journey. Of course, everything’s coming from YouTube, whose potential copyright liability is a hot topic in the IP blawgosphere. But perhaps even more striking here is the potential liability of sites that link to infringing content on YouTube sites. The legal landscape is complex, and as Stacy Dogan has noted, there’s a wide range of ways courts may characterize the links when assessing secondary liability:
In the narrowest view, a link is no more than a citation, the relationship between linking and linked-to site no more significant than that between a scholar and the material that she cites. In the broadest view, the link achieves the “functional equivalent of transferring” the linked content, with the linker acting as a provider of the linked-to material. The choice between these competing views has obvious import in evaluating the legal responsibility of those who link. (from Infringement Once Removed: The Perils of Hyperlinking to Infringing Content, 87 Iowa Law Review 829 (2002))
It’s a pretty complicated area, and the hacker magazine 2600 learned the hard way that a link to material that helped people circumvent technological protections of copyright was itself a DMCA violation. [I had earlier, mistakenly, called this a criminal offense; see comments below.] The question after Grokster may well be whether a hyperlink to infringing content is a way of “inducing” infringement.
In any event, Google (which recently took over YouTube) doesn’t appear to want to take any chances. It’s a lot more willing to take on publishers than the big audiovisual content owners. Which raises one more interesting question: will the movie industry exert as much control over Google/YouTube as the music industry exercises over iTunes? And might it be a form of copyright misuse for big content owners to leverage control over copyrighted works into control over all sites that categorize or comment on (fragments of) their works?
November 1, 2006 at 7:20 am
Posted in: Intellectual Property, Weird
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Responses (4)
Matt - November 1, 2006 at 10:23 am
Love the post title.
Bruce Boyden - November 1, 2006 at 1:44 pm
It’s a pretty complicated area, and the hacker magazine 2600 learned the hard way that a link to material that helped people circumvent technological protections of copyright was itself a criminal offense.
It’s certainly an undeveloped area, but principles are beginning to emerge. Namely, a link as citation is unlikely to lead to trouble, but attempting to disseminate something by linking to it (e.g., a direct link to a non-browser-readable file) may be liability-inducing.
So it’s important to keep in mind the actual facts involved in Corley. It was a civil suit, not criminal. More importantly, 2600 didn’t simply make “a link” to DeCSS, it posted hundreds of links, some of which were direct downloads, in an express attempt to distribute the file as widely as possible. Obviously there will be mushy cases at the border of distribution and citation, but Corley doesn’t appear to be one.
Frank - November 1, 2006 at 2:47 pm
Re the “link as citation” vs. “link as dissemination”: thanks for the clarification–though I’d love to see some clear safe harbor out there. I tend to think “inducement” could be interpreted pretty liberally, depending on which “concurrence” in Grokster is most favored in the lower courts.
Re civil/criminal distinction in Corley: Yes, sorry about that, I had Sklyarov in mind when I typed that up. I’ll do a “strikethrough.” But you wouldn’t dispute that the publishers of the links *could* have been found criminally liable under the DMCA, would you? I don’t believe that violation of anti-trafficking provisions of the DMCA is dependent on a showing of infringement. (see, e.g., Reimerdes, 111 F. Supp. 2d at 315). As Corley notes, the DMCA creates both “civil remedies, §1203, and criminal sanctions, §1204.”
I think these pieces suggest the danger:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=388081
http://www.lawtechjournal.com/notes/2002/29_020827_gilbert.php
Bruce Boyden - November 1, 2006 at 4:56 pm
I don’t believe there’s a substantive difference. However, there should be a difference resulting from prosecutorial discretion. If you lie in a letter to your Grandma about how you spent the money she sent (in order to continue receiving such gifts in the future), you’re not likely to be prosecuted for mail fraud, even if it’s a literal violation of the statute.
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