This is a publication by The Harvard Journal of Law and Technology, which explains and discusses the two theories of indirect copyright infringement liability: Contributory infringement and Vicarious infringement at the same time offering an economic perspective. Contributory infringement is when a company that produces a product or service is liable for indirect infringement as a result of a third party user committing infringement by using the product or service. Vicarious infringement has to do with an employee committing infringement and the employer is then liable for that infringement because he had "knowledge" of that infringement. Throughout the article, the authors make use of two examples illustrating two extremes: a flea market example, in which a property owner provides a service to individual sellers, and some of these seller sell copyrighted material; and a photocopier example, in which the use of the copier can have both infringing uses and legitimate ones. The article also discusses several important issues surrounding these two theories, such as the Sony v. Universal case, the napster case, and the DMCA law. It provides analysis on why the court rejected Napster's claim that it was "only a service like the VCR." Essentially, the artical says that Napster could have prevented the copyright infringement without harming the legitimate uses. Ultimately the article makes the conclusion that "every mechanism for rewarding authors inevitably introduces some form of inefficiency, and thus the only way to determine the proper scope for indirect liability is to weigh its costs and benefits against the costs and benefits associated with other plausible mechanisms for rewarding authors."
This is a very valuable source for my research paper for a number of reasons. Many site operators such as Gary Fung (owner of www.IsoHunt.com), claim that they are only providing a "service" like the "sony VCR". The article provides valuable analysis of the napster case, specifically that the court said that even though napster provided a "service" if it had "knowledge" and "could effectively prevent" copyright infringement it is liable for indirect infringement. I plan to utilize this point in favor of my argument that government, specifically the judicial branch, can shut down sites like isoHunt if it proves them to be indirectly liable for copyright infringement. The artical is also important for my research paper because it raises issues such as that "the costs in terms of unavoidable interference with legitimate products might be too high, and society would therefore be better off forcing copyright holders to rely on other mechanisms."
This is essentially the plaintiffs' (Columbia Pictures' et. al.) memorandum of Points and Authorities in Support of Summary Judgement on Liability. Essentially it captures the main arguments of the plaintiffs in Columbia Pictures v. Gary Fung (IsoHunt), a recent development in the bittorrent context. Essentially the plaintiffs claim that the whole purpose of the "Fung websites" is to facilitate and provide users with the ability to search for ".torrent" files which link to trackers hosted on various computers and servers that contain actual content files like movies, etc. Also, plaintiffs maintain that "torrent" files in themselves have no purpose but to link to actual content files. The plaintiffs say that there had been done an "unrebutted" statistical study which showed that "95%" of all the torrents on the "other fung sites", which work hand-in-hand with the main IsoHunt site, are links to copyrighted material. Also important, is the plaintiffs counter to the defendant's (Gary Fung) claim that the Grokster case doesn't apply because unlike in the Groster case IsoHunt does not distribute any product. The plaintiffs' argument is that this claim is invalid because the Grokster case had nothing to do with it being a product as opposed to a service, but rather the fact that the Grokster "induced and promoted" active infringement which thus made Grokster liable for contributory infringement.
This document is crucial to my research paper. It is the only recent legal document, and at the same time a primary source, directly related to my research thesis of whether government can/should shut down sites like www.IsoHunt.com. I plan to use virtually all of the arguments presented by the plaintiffs in my research paper. By weighing these arguments with various other sources (copyright law, DMCA, Grokster case, Fung's Affidavit) I'll be able to reach some kind of a conclusion in regards to my thesis.
tagged bittorrent columbia_pictures_v_fung copyright_culture copyright_infringement engl_105 filesharing gary_fung grokster indirect_liability_copyright_infringement internet_service_providers isohunt napster p2p piracy search_engines by pmekler ...on 24-NOV-08
This article written by Lawrence Lessig, a professor at Stanford University, sees Viacom’s lawsuit against YouTube as preempting Congress’ preeminent role in determining copyright law. Lessig cites to case law and the Constitution to conclude that sound policy and history support deference to Congress when major technological innovations alter the market for copyrighted material. He opines that Viacom is trying to play an end run around Congress and the 1998 Digital Millennium Copyright Act (“DMCA”) with its lawsuit against YouTube.
He explains that the DMCA was intended to protect copyright owners while making it possible for internet service providers to avoid crippling copyright liability. It achieved this result by immunizing the internet service provider from liability for infringing material posted by its users as long as it removed the infringing material upon notice by the copyright holder. According to Lessig’s article, the statute expressly places the burden of policing content on the copyright holder and not on internet service providers like YouTube. Through its complaint, Viacom is trying to shift that burden onto YouTube.
Lessig claims that Viacom, not satisfied with a Congressional statute, is turning to the courts to “update the law.” According to this article, it is not the role of the courts, but rather the role of Congress to modify the DMCA’s safe harbor provision. He states that Viacom’s lawsuit will result in the internet facing years of uncertainty in litigation and possibly undermining the intent of Congress to forge a cooperative relationship between copyright holders and online service providers through the DMCA’s statutory framework.
The underlying assumption in this article is that YouTube will have a valid defense under the DMCA to Viacom's claims of infringement. This paper will critically analyze Lessig's fundamental assumption that the DMCA provides a viable defense for YouTube. An important part of this analysis will be Lessig's argument that the court should defer to Congress. Specifically, the paper will keep in mind Congress' intent in enacting the DMCA and its balancing of the rights of copyright holders with the need to protect internet service providers who are the pioneers of an emerging means of communication.
This article written by Fred von Lohmann, attorney with the Electronic Frontier Foundation, examines how YouTube would fare under the copyright law and, in particular, the Digital Millennium Copyright Act (“DMCA”). According to the author, the stakes are tremendous because YouTube’s website hosts infringing copyrighted material but it also facilitates the free flow of information and spawns original and transformative creativity. The author opines that in light of YouTube’s business operations it legally should be shielded by the safe harbor provisions of the DMCA. However, he cautions that YouTube must continue to walk a careful line so as not to run afoul of the safe harbor requirements.
The article examines several of the DMCA’s requirements mandated by Congress. First, the author examines YouTube’s policy in implementing the termination of repeat infringers and the removal of infringing content. He concludes that YouTube’s written policy and implementation meet the DMCA’s requirements concerning termination, as well as notice and take-down. Second, the author finds no obvious pirate sites on YouTube which is an important factor in analyzing the knowledge requirement. Third, in examining the direct financial benefit test, Mr. von Lohmann explains that it represents an important hurdle for service providers. In the case of YouTube, he finds that it has chartered a cautious course by putting advertising only on search result pages rather than on the clip pages themselves. He suggests, however, that YouTube may feel increasing pressure to develop innovative business opportunities other than by limiting the placement of advertising on its website. In that regard, YouTube will have to experiment with different revenue strategies that do not run afoul of the DMCA.
For purposes of my paper, this article provides valuable information on YouTube's business operations. According to the author, YouTube largely complies with the requirements mandated by the DMCA, but the financial benefit test could be problematic for it. In determining whether YouTube should successfully meet the requirements of the DMCA, an examination of YouTube's operations will be critical and this article will be helpful in that regard.
This law review article written by Jason Breen from the UCLA School of Law analyzes YouTube’s defenses to the Viacom lawsuit and, in particular, the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”). The article examines each of the requirements mandated by the DMCA and how those requirements have been interpreted by the courts. It also points out where some of the court decisions appear to be inconsistent.
This article examines requirements of the DMCA that YouTube must meet in order to qualify for safe harbor protection. First, the author reviews whether YouTube accommodates “standard technical measures” used by copyright owners to identify their copyrighted works as required by section 512(i) of the DMCA. Second, as the protections of the DMCA are only available to qualified service providers, this article examines whether YouTube will qualify as a service provider and notes that the courts have broadly interpreted this provision. Third, YouTube must establish that it does not have actual or apparent knowledge of the infringing material. By providing a plethora of cases, the article concludes that the high standard of proving the provider has the requisite knowledge would likely weigh in YouTube’s favor. Fourth, according to the article, a more difficult hurdle for YouTube to meet is the requirement that YouTube not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control such activity. The article points out two conflicting lines of judicial reasoning regarding this two-part test. Using citations provided by this author and after reading several of these cases (some of which are included in this Annotated Bibliography), I can address in my paper how these conflicting theories might impact YouTube’s defense under the DMCA.
The author concludes that it is likely but far from certain that YouTube will be able to avail itself of the DMCA’s safe harbor in light of the uncertainties in the law and factual questions as to YouTube’s operations. This article is helpful in analyzing YouTube’s operations, Viacom’s allegations, and in providing citations to court decisions which I will read and apply to the facts of this lawsuit in order to make my own judgment as to whether YouTube should prevail under the safe harbor provision of the DMCA.
tagged copyright_culture dmca financial_benefit_test jason_breen knowledge_test service_provider standard_techincal_measures viacom youtube by kbleic ...and 1 other person ...on 22-NOV-08
This law review article analyzes whether or not YouTube will be able to defend itself against Viacom’s claim of copyright infringement under the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”). The author examines the case law concerning the specific requirements of the DMCA including: 1) qualifying as a service provider; 2) the actual or apparent knowledge test; 3) the direct financial benefit test; and 4) the ability to control the infringing activity test.
What is particularly helpful to my paper is that the author provides extensive information on YouTube’s business operations. The article details the automated and user generated nature of YouTube’s site which is relevant to the DMCA’s knowledge and control tests. It also provides a discussion of how YouTube generates revenue. An analysis of YouTube’s revenue stream is relevant to the financial benefits test required under the DMCA. The article’s discussion of YouTube’s business will be relevant to analyzing whether YouTube should meet the DMCA threshold and core requirements, which are fact dependent.
The author opines that the site’s easy to use technology provides a ready platform for showcasing original and transformative videos. Against this backdrop of user creativity, it is clear that YouTube’s website also contains unauthorized copyrighted works. However, the author provides evidence of YouTube’s good faith efforts to run a legitimate business not premised on the unauthorized use of copyrighted works. Such information is pertinent to an overall sense as to whether YouTube’s purpose is to simply pirate other companies’ videos or to provide a venue for sharing new and original video content.
The author concludes that given the uncertainties surrounding how the court may interpret the various requirements of the DMCA, it is unclear whether YouTube will be afforded safe harbor protection. For the purpose of my paper, this article will be helpful in providing factual information as well as citations to various court decisions which I will read and analyze so that I can reach my own conclusions concerning the application of the DMCA to YouTube.
In this case, Corbis, the owner of copyrighted photographs, sued Amazon.com for copyright infringement after several of Corbis’ photographs, without its consent, appeared on third party vendor platforms hosted by Amazon.com. Amazon.com’s primary defense was that it is protected from liability for the alleged copyright infringement under the Digital Millennium Copyright Act (“DMCA”). Thus, the Corbis case is pertinent to my analysis in that many of the issues facing YouTube in meeting the requirements of the DMCA were addressed in this case.
The Corbis court addressed the DMCA’s requirements that the service provider 1) not have actual or apparent knowledge of the infringing activity and 2) not have the ability to control the content of users’ postings. The Corbis court ruled that actual knowledge requires that the copyright holder provide evidence that it notified the service provider of the specific infringing material. The court also found that Congress contemplated that apparent knowledge of infringing activity requires that the service provider turn a blind eye to red flags of “pirate sites.” For purposes of my paper, the extent to which user sites are obviously infringing will be critical to the application of the knowledge test.
The Corbis court also amplified the DMCA’s right and ability to control test. It explained that the ability to control the infringing activity cannot simply mean the ability of the service provider to remove or block access to materials posted on its website or stored in its system. According to the court, there must be some level of active involvement with content decisions. In the case of YouTube, its screening techniques and its technology for identifying and removing infringing videos will be relevant to determine whether YouTube runs afoul of this requirement.
Whether or not YouTube satisfies the requirements of the DMCA, including its level of knowledge and the ability to control infringing activity, will be fact dependent. However, the court’s analysis in Corbis and its discussion of the DMCA’s legislative history will be helpful in applying the facts of the YouTube litigation to the law.
In denying Viacom’s allegations of direct and secondary copyright infringement, YouTube will seek to obtain the protection of the safe harbor provisions of the 1998 Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512. A finding that YouTube satisfies the DMCA’s safe harbor requirements would immunize it from monetary damages or injunctions even if it were found to have directly or secondarily violated the copyright laws. The statute explicitly mandates a series of threshold requirements (17 U.S.C. 512(i)) and core requirements (17 U.S.C. 512(c)(1)) that a service provider must meet to be entitled to safe harbor protection. Most problematic for YouTube will be whether it meets the DMCA’s core requirements under section 512(c)(1)(A),(B), and (C). Subpart A requires that the service provider not have actual or apparent knowledge that the material on its network infringes on the rights of a copyright holder. The legislative history will be examined to determine the scope of “apparent knowledge” including an examination of the “red flag” test stated in the Congressional Reports dealing with the DMCA. Subpart B requires that the service provider not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control such activity. Of critical importance to Subpart B will be YouTube’s business model for generating revenue from advertisements. Subpart C requires the service provider, upon notification by the copyright holder of claimed infringement on its website, respond “expeditiously to remove” the infringing work. Both Viacom’s arguments and YouTube’s counter arguments will be examined in an effort to determine whether YouTube’s removal policy conforms to the DMCA requirements.
My paper will address some of the conflicting cases that have examined the various sections of the DMCA described above and rely on the legislative history at H.R. Rep. No. 105-551 (1998) and S. Rep. No. 105-190 (1998) to amplify congressional intent. Critical to my analysis will be the application of the facts of this lawsuit to the language of the DMCA, taking into account its legislative history, to determine whether YouTube should meet the requirements of the DMCA’s safe harbor provision.
This article written by Michael Fricklas, general counsel at Viacom, sets forth Viacom’s legal and factual arguments supporting its position that YouTube should not be afforded safe harbor protection under the Digital Millennium Copyright Act (“DMCA”). First, he argues that YouTube is not the kind of entity envisioned by Congress in enacting the DMCA. YouTube, he claims, is more than a storage service provider; it is an entertainment destination. Second, Viacom’s attorney claims that YouTube’s policies with regard to infringing content are selectively implemented with more proactive action given to companies in which it has a licensing agreement. Third, the rampant unauthorized copyrighted material on YouTube demonstrates that it has the requisite knowledge of infringing activity. He cites as further support for a finding of knowledge the fact that YouTube creates a list of “featured videos” on its home page. Fourth, Mr. Fricklas states that YouTube receives a direct financial benefit from infringing activity. He contends that infringing content generates popularity and more viewers which increase advertising revenue. Fifth, he asserts that YouTube has the ability to control content. As evidence of this fact, Mr. Fricklas states that YouTube’s managers remove pornography. Finally, as a policy matter, he claims that requiring copyright owners to patrol the web on an ever burgeoning number of sites would be unfair. Forcing YouTube to obey copyright laws would not stifle innovation. Instead, Viacom’s attorney argues that protecting intellectual property spurs investment and thereby the creation of new technologies. It is, therefore, critical that the law ensure that YouTube respect the rights of copyright owners, like Viacom.
Mr. Fricklas’ arguments are, of course, partisan. However, they shed light on Viacom’s perspective and the facts that it may rely upon during the lawsuit. The article also crystallizes some of the hurdles that YouTube will have to overcome if YouTube is to receive safe harbor protection. In reaching my conclusion as to whether YouTube should meet the DMCA’s requirements, it will be necessary to present and analyze Viacom’s arguments. This article will be helpful in that regard.
In this case, Costar Group Inc. v. Loopnet, Inc., Costar, the owner of numerous copyrighted photographs, sued Loopnet, an internet company that listed commercial real estate on its website which included some of CoStar’s copyrighted photographs, for direct and contributory copyright infringement. As in the YouTube case, Loopnet sought refuge in the protection of the Digital Millennium Copyright Act (“DMCA”). One of the critical issues for YouTube to successfully invoke the protections of the DMCA will be whether or not it receives a direct financial benefit from the infringing material on its website. The Costar case sheds light on this element of the DMCA.
In the Costar case, the court ruled that Loopnet did not receive a financial benefit directly attributable to the infringing photographs. In reaching that conclusion, the Costar court relied on the legislative history of the DMCA and related case law. The court found significant that Loopnet did not charge a fee for posting any real estate listing, whether it was with a photograph (thus potentially infringing) or without a photograph (non-infringing). It rejected Costar’s claim that Loopnet financially benefited by having infringing works on its website which enhanced the attractiveness of its website to potential customers. The Costar court found that this type of financial benefit was an indirect benefit, not the type of direct benefit required by section 512(c)(1)(B) of the DMCA. However, there is another line of cases (one of which is included in my Annotated Bibliography – Perfect 10 v. Cybernet) which concludes that there is a direct financial benefit where the infringing material acts as a draw that attracts subscribers to the website. That line of cases could be problematic for YouTube. In the case of YouTube, the manner in which it generates income will be critical to the application of the financial benefit test. Specifically, YouTube’s advertising revenue will be considered in light of the Costar financial benefit analysis as well as the alternative analysis that focuses on the potential draw of the infringing material.
Perfect 10, an adult entertainment website, sued Cybernet Ventures, an online age verification service, for infringing photographs found on its affiliated websites. In this case, the court refused to provide Cybernet with safe harbor protection under the Digital Millennium Copyright Act (“DMCA”). The reasoning of the court provides some insights into whether or not YouTube will be protected by the DMCA.
In determining whether Cybernet would be afforded safe harbor protection, the court analyzed each of the DMCA’s requirements. The court looked to the legislative history as guidance and relied upon Congress’ mandate to “take a common-sense, fact based approach not a formalistic one.” Overshadowing much of the court’s discussion was evidence of Cybernet’s attempt to undermine the intent of the DMCA to forge a working relationship between copyright holders and service providers. Of particular importance was the fact that Cybernet, after receiving notice from the copyright holder, failed to expeditiously remove infringing material from its system evidencing bad faith and undermining congressional intent.
Also significant for purposes of my paper is the Cybernet court’s analysis of the DMCA’s direct financial benefit test. Here, the court found a direct financial benefit where Cybernet’s income was based on the number of new users to affiliated sites including infringing sites. The court found that the quality of Perfect 10’s copyrighted images attracted new subscribers. Thus, the infringing images acted as a draw which increased Cybernet’s revenue. This case could be problematic for YouTube since Viacom has argued that the infringing works on YouTube’s website attracts more users which in turn drives higher advertising revenue. Accordingly, the manner in which YouTube generates its revenue will be highly relevant to the financial benefit test. Whether YouTube satisfies the financial benefit test will be analyzed under Cybernet’s reasoning, other court opinions, and the legislative history that interprets the direct financial benefit test.
This is a news article reporting on the recent developments in the campaign against copyright infringement. Specifically it reports on the recent development surrounding isoHunt. Essentially it makes it known that IsoHunt is using the claim that it's "only a search engine" as a defense against copyright infringement. It also makes reference to how the IsoHunt website functions as claimed by Gary Fung, the owner and developer of the website technology (see Affidavit no. 1). The article also exposes the MPAA's strategy in accusing IsoHunt and the like in copyright infringement. According to the artical the MPAA is heavily relying on the MGM v Grokster case. Lastly the artical also provides some significant issues raised by the on-going case. One is that it will probably be difficult for IsoHunt to prove to the judge that the IsoHunt website behaves like Google or Yahoo or any other search engine. It also raises an important point in regards that once settled this case could affect the fate of the whole internet structure specifically for search engines and the filesharing community.
The article is important for my research paper because it is the only article out of those that I looked at that covers the developments of the MPAA v. IsoHunt case in an unbiased way. Furthermore, since there is no official court transcript available as the case is still in progress any recent developments are important for my research paper. Further it provides one significant insight that IsoHunt does not behave in the same way as any other search engine in the sense that google and the like is data-agnostic but isoHunt links to specific type of content. I plan to quote this directly in my paper.
This is a publication by the Virginia Law Review. The section focused upon for the purpose of my research paper is section C: The Kazaa era: 2001 - present. The article provides some unbiased description of the two technologies FastTrack and Gnutella. It focuses on some of the key developments in the filesharing domain after napster specifically the kazaa network. It explains how the technology descriminates between fast connections and slow connections. The article also addresses the issue how lately there appeared an effort by filesharing technology developers to write code that would reflect the copyright law. In the sense that the technology worked in such away as it is hard to place the blame on the developers. It also raises the point that the more files there being shared the better it is for the network performance and in essence for the developer. The other part of the article addresses how the music industries made every effort to stress the similarity between napster and kazaa and the other FastTrack networks. The article goes on to make reference to the Mgm v. Grokster case. Specifically it provides insight to how these technologies may have won out against the recording industries. The article quotes Judge Wilson, who presided over the Grokster case in the ninth district appeals court. The judge said essentially that if the companies were shut down, the users of the network(s) would still be able to do what they were doing.
This article is important for my research paper because it provides basis for an important analysis. For example, it was later seen that the movie industry in fact did win in the supreme court (see Mgm v. Grokster source). So although Judge Wilson ruled in favor of Grokster by saying that the technology was not similar to napster and that even if the company was shut down the users of the software would still be able to do what they were doing, it was later seen in the supreme court that Grokster actually lost. Today it is known that IsoHunt and the like are being sued and so if it is somehow possible to establish the similarity between IsoHunt and Grokster the same strategy may be applied to get IsoHunt shut down. The article also raises a few other important points such as that these networks continue to operate as long as there is more and more content being shared.
This is a publication by the Ifo Institute for Economic Research located in Munich. The authors are Martin Peitz and Patrick Waelbroeck. Essentially this is a detailed economic analysis of various models concerning the effects of digital copying and secifically pirated digital copies. The paper specifically looks at filesharing networks and analyzes the economic impact. The authors analyze the common claim by record industries and "affected" industries, that unauthorized copying leads to lost profits. The authors present various articles by other reputable sources, and provide analyses of them. In some situations firms do indeed lose profits either directly attributable to piracy or indirectly. However, the publication also cites situations under which digital copies actually increase firms' profits and social benefit all together. Among other things, the paper also provides specific examples of types of goods and state whether producers of these goods benefit from digital copies.
This source is very important to my research in a number of ways. It provides a third party outlook on the impact of unauthorized digital copies. While some of the issues raised by this publication complicate my research paper, the publication does provide some analyses which provide support for my thesis that government should suspend sites that host/index unauthorized copies of copyrighted content. For example, it mentions that in a certain setup firms do suffer from the existence of copies. Also it talks about how copies limit the monopoly-power of the firm, which in the long run detracts both from the producer surplus and the social surplus as a whole. Careful consideration and analysis of this source will help address my thesis question more fully.
This is a summary of the Digital Millennium Copyright Act of 1998 released by the Copyright Office. The DMCA was signed into law by President Bill Clinton. It is divided into five titles.
- Title 1: WIPO TREATY IMPLEMENTATION implements the WIPO treaties. The title makes several technical amendments regarding national eligibility, restoration of copyright protection and registration as a prerequisite to suit. Although the title provides exceptions, the title essentially prohibits the production/services of copyright-protection circumvention tools. Further it prohibits the distribution of such tools/services.
- Title 2: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION. The title essentially provides a safe-harbor for online service providers as long as they meet certain provisions of the title. It establishes for classes of online services: transitory communictations, system caching, storage of information on systems or networks at the direction of users, and information location tools. In general as long as a service provider does not have requisite knowledge of infringing material, does not recieve financial gain attributable to infringing activity, and further more once the service provider is notified of infringing material it must act fast to take down or block access to such material.
- Title 3: Computer Maintenaince or Repair. This title basically says that an owner of a computer or a lessee doing maintenance or repair on the computer is excempt from copyright infringement if a situation arrises during which one must make a copy of a program for back up purposes. However the original copy must have been lawfully owned and further once all repair/maintenance has been finished the back up copy must be destroyed.
- Title 4: MISCELANIOUS PROVISIONS. This title further clarifies certain existing provisons and implements new ones regarding broadcast excemptions, library and archive excemptions among other things.
- Title 5: PROTECTION OF CERTAIN ORIGINAL DESIGNS. This title primarily deals with the protection of vessel hull designs.
This source is very valuable for my reseach paper. Specifically Titles 1 and 2 are going to be analyzed and used in my research paper. Title 1 is important in 1 crucial way. Although it may be a leap, in the sense of a legal court room, but I believe that the following analysis can be seen valid. IsoHunt and other similar websites link to/index .torrent files that allow users to download ISOs. ISOs are images of original CDs or DVDs. Now given that the DMCA prohibits the circumvention of encrypted DVDs, and other content such as software, these ISOs are illegal according to Title 1 of the DMCA. IsoHunt and other similar websites allow users to search for and download such ISOs. The title of the website itself: "IsoHunt" suggests that the primary purpose of it is to "hunt" for "Iso"s. Title 2 is important for my paper because site operators such as Gary Fung (see affidavit no.1) often claim that as long as they follow the safe harbor provisions established by Title 2 of the DMCA, they may not be held liable for contributory infringement. Thus in my research paper I plan to make careful analyses of both these safe-harbor provisions and the claims of site operators. Title 2 is also important because many other important sources that will be used directly deal with this title.
This is the U.S. copyright law chapter 1 which deals on the subject matter and scope of Copyright. For the purpose of my research paper only section 106 is going to be focused upon.
Section 106, essentially outlines what exclusive rights copyright owners have. The main three rights it outlnes are the rights to make copies, to make derivitive works, and the right to distribute copies/works. Also the section addresses the rights of copyright owners involving motion pictures, audiovisuals, dramatic, and choreographic works. Essentially the section says that only the copyright owner has the exclusive right to perform or display the work publically. Lastly the section states that only the copyright owner can perform a work digitally.
Section 106 is important for my research paper because in order to determine whether copyright infringement was committed one needs to know what constitutes copyright infringement. Since there is no explicit clause in the constitution pertaining to file-sharing infringement a careful analysis of this section needs to be done. Section 106 provides the legal basis for the argument that when a user downloads a copyrighted work he essentially copies it; similarly when a user uploads a copyrighted work he essentially distributes it. Thus using/promoting a file-sharing technology to download/upload copyrighted material is infringing on the rights of copyright owners established by section 106.
This is a chapter from the U.S. code pertaining to copyright. For the purpose of my research paper only sections 502 & 504 are being focused on.
Section 502 deals with remedies for copyright infringement, specifically injunctions, and is subdivided into two parts. The first one makes it legal for courts to "grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." This can be interpreted that courts may rule however is necessarry and within power in order to prevent occurrences of copyright infringement. The second part of section 502 says that any court in the United States, having jurisdiction of the relevant parties, may serve any injunction as described in part a. It also says that once an injunction is served it shall be operative in and shall be enforceable by the United States.
Section 504 deals with damages and profits stemming from copyright infringement. Essentially it provides the legal grounds for an infringer to be financially liable for the copyright owner's actual damages and any additional profits made by the infringer, attributable to the copyrighted work.
These pieces of law are important for my research because they provide the legal grounds for a government or appropriate agencies to go after copyright infringers. Furthermore they provide legal grounds for any theory of indirect liability for infringement; specifically in those cases when an online service provider such as IsoHunt makes profit in the form of advertisement revenue much of which can be attributed to the popularity of copyrighted content found using the service.
This is the Supreme Court Opinion regarding the MGM et al v. Grokster et al case. The opinion of the court was delivered by Justice Sutter. Essentially what happened was that the decision made by the United States Court of Appeals for the Ninth Circuit was reversed. The question raised before the court was "under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product." According to the court, there was an error made by the Ninth Circuit Court, in its interpretation of Sony v. Universal City Studios. "The Ninth Circuit has read Sony’s limitation to mean that whenever a product is capable of substantial lawful use, the producer can never be held contributorily liable for third parties’ infringing use of it..." This document includes a description, gathered in the process of litigation, of how the Grokster and StreamCast products worked what technologies they used (Gnutella and FastTrack) and more importantly how the products were used by their users. It is made known that although the products have legitimate uses "90%" are copyright infringement uses. Another important point made by the document is that both Grokster and StreamCast profitted from advertisements that users would see while using the product. Furthermore, it is made known that "the business models employed by Grokster and StreamCast confirm that their principal object was use of their software to download copyrighted works." The decision of MGM v. Grokster essentially made the precedent that the Sony v. Universal decision doesn't leave service providers such as Grokster and StreamCast unliable for copyright infringement made by third parties using their product.
This source is very valuable for my research paper because it is one of the only cases dealing directly with the issue of p2p filesharing. Furthermore it provides support for my contention that government can and should shut down websites involved with/enabling copyright infringement. Many of such service providers use the Sony v. Universal case as defense against being liable for copyright infringement stemming from the use of their service by third party users. This case set a precedent to how future cases involving filesharing and copyright infringement cases are going to be handled in the future. Also, many of the current websites being targeted by the MPAA and RIAA and other agencies, whether in the U.S. or elsewhere, including www.IsoHunt.com among others, function in similar ways as Grokster and StreamCast did. Therefore if Grokster and StreamCast were found liable by the Supreme Court in this case, some of the strategies/analyses from this case can be used to shut down other sites such as IsoHunt.
This is a legal document, specifically an affidavit, filed by Gary Fung, owner of the IsoHunt Website (www.isohunt.com), in the Supreme Court of British Columbia in Canada, on September 5, 2008. After receiving a letter from the Canadian equivalent of RIAA, the CRIA, stating that the IsoHunt website is responsible for copyright infringement and furthermore that Gary Fung must take appropriate action to make sure that the site is deactivated, in other words a cease and desist request. In response Gary Fung filed this document for the purpose of having his rights clarified by the Supreme Court of British Columbia, which will in effect make it easier for Fung in later legal proceedings in regards to CRIA claims. In the document, Fung essentially reveals the nature and purpose of the IsoHunt Website. He explains why it exists, how it operates, and the content that it hosts. He makes it known that the site is essentially a search engine "similar to Google, Yahoo, Windows Live, etc." which exists for the purpose of making the search for dot-torrent files easier for users. He also explains that a user can essentially use Google and obtain similar results that can be obtained on the IsoHunt Website. Furthermore he makes it clear that no "content" is actually hosted by the website but just links to the torrent files are indexed. He also explains what are torrents and the BitTorrent p2p protocol that allow them to operate. He also makes it known that the Website is in no way affiliated with the BitTorrent protocol, the torrents, or the various software needed to download/create the said torrents.Lastly, Fung included eight supporting documents with his Affidavit one of which is a copy of the letter that he recieved from CRIA.
This source is important to my research project in many ways. First, it is a primary source from the owner of the IsoHunt website, the legality of which is in question by my research. Also it is a very recent source, which is very important in addressing the issue of copyright infringement by filesharing websites. It will be crucial in establishing the key differences and/or similarities between the technology this site uses and previous shut down sites such as Grokster and Napster. Further, the document also raises a complicating issue, that Google search engine technology functions in a similar fashion which implies that if one is not allowed to exist than how can the other be allowed to. The document also illustrates the DMCA Takedown provision in action, which in a way complicate my argument further, since Gary Fung does have all the necessary provisions of the DMCA addressed. Another reason why this is a valueable source for my research is that one of the attached documents is a copy of the letter from CRIA Fung recieved, which will be helpful since it exposes the vew shared by CRIA. Over all this is a valuable primary source that will prove to be valuable in my research.