Who?s Liable?

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http://www.affdoublethink.com/archiv...kermit_and.php
by Elizabeth Nolan Brown | Jul 8, 2007

<.. Just thought I would share ..>

Who?s Liable?
Section 106(3) of the Copyright Act of 1976 provides copyright owners with the exclusive right to determine how their material will be used and distributed to the public. A producer who uses copyrighted material without proper permissions is liable for ?direct infringement? on the rights of the rights holder. A producer who makes and posts infringing material on the Internet can be sued directly by the material?s owner.

For practical purposes, however, copyright holders would rather take action against the platforms hosting the infringing material than against each and every individual infringer. To this end, copyright holders have, in the past, sought to make Internet platforms responsible as ?substitute? defendants, even if they didn?t ?affirmatively? engage in infringing activity.

In 1997, Playboy Enterprises brought a suit against an online bulletin board on which pictures from Playboy magazine were available for sharing amongst members. Playboy claimed the service profited from a system in which consumers downloaded Playboy photos for free from the bulletin service instead of purchasing Playboy magazine.

The service argued that Playboy photos were posted by bulletin board subscribers, not by employees of the service, and therefore it could not be held directly liable for infringing activity. The court ruled in favor of Playboy, finding that the service had engaged in two of the activities reserved to copyright owners -- distribution and display -- and therefore was, in fact, directly liable.

The court?s opinion came under attack, however, for neglecting to consider another type of liability: contributory infringement. Contributory infringement is very similar to the criminal concept of aiding and abetting, says Tapia. Under current copyright law, hosting platforms can be found liable for ?contributory infringement? if they know about and allow (or encourage) infringing activity by third parties.

In Arista Records Inc v. Flea World Inc, for instance, a flee market was found to have committed contributory liability by allowing vendors to sell counterfeit CDs. The relevance to video-sharing sites such as YouTube.com, Myspace, Blip.tv, and Google video is obvious. Most recently, media conglomerate Viacom brought suit against online video platform YouTube and its parent company, Google, accusing YouTube of ?massive intentional copyright infringement? and seeking more than $1 billion in damages.

Protecting the Platforms
When the 1976 Copyright Act was being written, telecom companies were concerned they could be found liable for customers transmitting infringing activities over their wires. A ?common carrier? provision was inserted in the act, which excepted companies from liability if they had no knowledge of infringing activity taking place through their services.

The Digital Millennium Copyright Act of 1998 updated this common carrier exception for the digital age in section 512A. Essentially, sites such as YouTube can exist because of this provision, often referred to as the ?safe harbor? law or, simply, ?512.? While fair use protects the right of a creator to make certain content, Section 512 basically protects the right of a video-sharing platform to host it.

?Sites like YouTube couldn?t have gone up without safe harbor laws,? says Fred Von Lohmann, a senior intellectual property attorney with the Electronic Frontier Foundation.

Under section 512 online service providers can qualify for safe harbor treatment from infringement liability. But first a platform must not have ?actual or constructive knowledge? of infringing activity taking place on its servers. It must also respond in a timely manner to requests to take down infringing material and have policies in place to terminate ?repeat infringers.? Finally, it must respect technological protections used by copyright owners to safeguard their material and not receive direct financial benefit from infringing activity.

Viacom?s case against YouTube rests on the restriction against financial benefit. In Viacom?s estimation, people are drawn to YouTube because it is a place to find certain types of infringing, copyrighted material, such as TV and movie clips. In an op-ed in the Washington Post, a Viacom lawyer wrote that ?YouTube would not exist without us.? YouTube does not qualify for protection under Section 512, Viacom argues, because it is receiving a direct financial benefit from the infringing material on its site.

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let us hope technology is not going to be stifled by more rules & regulations

no matter the cost we take from copyright infringement