July 1, 2003
Contributory and 512
(UPDATED 3:00, 7:25 PM) A comment to my second Madster post below makes some very valid points. Particularly, he brings up the importance of Madster’s affirmative conduct in the case and in Posner’s standard.
I’m not sure this is grossly different from Napster, where that affirmative conduct was also key. The difference is that, here, even having the site and facilities might not be enough if you didn’t affirmatively assist others in infringement. That’s going even further than Grokster.
But, what about DMCA 512?
Update: Color me wrong and sloppy. The commenter gently reminds me that DMCA 512 is, duh, a safe harbor, a limitation on liability, not a liability standard in itself. My bad. Who is this commenter? Somebody get him a weblog.
Random thought: when would a court interpret forfeiting one’s safe harbor as accepting liability? (Here, I’m reminded of Rehnquist’s opinion in Bush v. Gore, where he said that Congress wrote a safe harbor to mean a drop dead deadline, not a safe harbor. So, in DMCA 512, saying what avails one of liability would actually define liability itself. Dubious reasoning, I think, in both cases.)
Filed by Derek Slater at 2:33 pm under General news
1 Comment
The fact that the DMCA ISP provisions provide an immunity to contributory infringement liability doesn’t mean the opposite is true–absent the immunity a copyright holder would still have to prove contributory infringement.
Ironically, it may very well be that, post Aimster, the more controls you put into your system to permit response to DMCA notices, the more likely you would be found to be a contributory infringer absent compliance. In the “new” (but really decades old) world of forums and blogs, this really may be a reverse incentive police content, and instead may propel technologies that minimize control over end-users.