alt Hacker NewsJust to try and understand the decision, an analogy that’s coming to mind would be like saying a van manufacturer wouldn’t have liability if it’s used in a bank robbery. However if the manufacturer sold it with the intent for the buyer to use it for bank robbery (the manufacturer having the intent in this case, as well as the robber themselves), then they could become partially liable.
Have I got that right?
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MGM vs Grokster is a good decision to read to understand the boundaries of contributory infringement.
https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,....
Yes, as much as I understand it. You have to either make a van that's specifically tailored to performing bank robberies (a door-smashing attachment at the front, a pulley to quickly get the safe box inside, etc), or at least advertise it as such ("Will get you from the robbery site faster than police can react!"). Otherwise, it's just a van. Owning a van, or selling a van, is not illegal because it could also be used to break law. (One's hands can be used to break law, but this does not lead to a liability for merely possessing hands.)
That's my understanding. Basic carrier vs service stuff. What I wonder is how this might impact gun manufacturers.
So, merely selling 'with intent' for the van to be used in a robbery I don't think meets the bar as the opinion is written. In particular, I read "...which can be shown only if the party induced the infringement or the provided service is tailored to that infringement;"
In that vein, merely selling a tool even if a predominant use or intention of that tool is infringement, the infringement must be actively induced or invited by the seller. This is also affirmed in detail in the USSC opinion: "The Court has repeatedly made clear—see Kalem Co. v. Harper Brothers, 222 U. S. 55, Sony, and Grokster—that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe."
This is the primary part of the opinion, the first 7 of 27 pages. I'm still reading the rest and will update when finished. (Concurring Opinion and Dissents I believe)
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The meat of the opinion has some interesting elements as well:
* "Internet service providers, such as Cox, have limited knowledge about how their Internet services are used and who uses them. They do know which IP address corresponds to which subscriber’s account, but they cannot distinguish one individual user from another...However, because online infringement is so widespread, pursuing each individual infringer does little to stem the tide.": mere IP logs are not enough to establish liability, perhaps. More importantly, it is opined that individual fishing expeditions dont actually serve the end of eliminating infringement. This does not absolve individual liability, but it becomes important later.
* "Holding Cox liable merely for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents ... The Fourth Circuit’s holding thus went beyond the two forms of liability recognized in Grokster and Sony. It also conflicted with this Court’s repeated admonition that contributory liability cannot rest only on a provider’s knowledge of infringement and insufficient action to prevent it.": This points to another case where Circuit and District courts have been ignoring the instruction of higher courts, in this case, inventing new liabilities where none existed. This doesn't go so far as to repudiate entirely the idea of fishing expeditions having teeth, but it places a clear guardrail around expanding liability without laws establishing such.
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The Sotomayor concurrence on judgment states that the Justice does not believe the methods used by the majority opinion are correct, but still agrees with the judgement because of insufficient information presented by Sony. I think the analysis gone into in this section is flawed, but it is also not precedential since it is not the Order part of the opinion. I am also out of time to poke at that part for the moment. It does relate this case to the closest recent big case on secondary liability though, that of Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, so its worth reading even if the justifying analysis I think does not fit.
The big difference I guess is whether you think negative jurisdiction (limiting what the government can do) vs positive jurisdiction (further enabling the government) is more important, but considering HN and the exhortations against divisive commentary, I'd rather not dive into the weeds arguing that part here.
The problem is these companies are typically natural monopolies. So it's not as if I choose this provider because they were lax in their copyright enforcement. I'd literally have to sell my house and move to accomplish this.
I think a better analogy would be crack pipes sold in minimarts in a box that says "for tobacco use only". Crackheads estate sues the pipe mfr says you knew people were using it for crack and are proximately liable for facilitating the drug use.
In this case, there is a safe harbor where ISPs can avoid liability by enforcing a policy against their customers that eventually cuts them off for repeated infringement. Cox stepped outside of this safe harbor by not following their own policy. But the court says that doesn't automatically make them liable.