Stuck in the Middle

Clowns to the left of me,
Jokers to the right, here I am,
Stuck in the middle with you.

Written by Gerry Rafferty and Joe Egan
Performed by Stealers Wheel
Recorded on Stealers Wheel (Lemon Recordings, 1972)

The lesson explores some of the issues that arise in respect of designers and/or operators of p2p networks that link people directly or indirectly to infringing content. We’ll talk about the evolution of the music industries’ strategy to combat internet piracy, from going after content hosts to connectivity providers to search engines, and from statutory prohibitions to civil actions to criminal prosecutions.

Upfront, what’s the difference between the p2p providers and social networks? Tim Wu explains that if the net were a red light district, Napster would be the pimp while YouTube is the hotel. That’s because of section 512 of the DMCA and analogous safe harbours in most jurisdictions worldwide.

From there, we’ll start our main discussion “way back” in the late 90s with the start of the Naspter litigation, the centrepiece of which i the 9th Circuit Court of Appeals decision in A&M Records, Inc. v. Napster, Inc.. Next came In re Aimster Litigation, from the 7th Circuit, which wasn’t really all that surprising in light of the ruling in Napster.

The really interesting issue was whether decentralized networks could be held liable just like centralized networks could. This was exactly the issue in MGM v Grokster, which moved the goal posts on defendants by adding a new kind of liability for inducing infringement. For a period of time the game of whack-a-mole was moving quickly it was nearly impossible to keep up.

The RIAA sued Limewire. Limewire counterclaimed, lost that battle in the Southern District of New York, and eventually settled the case.

Meanwhile, elsewhere in the world, the Dutch adopted a position quite different from the Americans in the 2002 case of BUMA & STERMA v. KaZaA. That case didn’t really matter much, because the assets of Sharman Networks, Kazaa’s parent company, had already relocated from the Netherlands to the South Pacific island haven of Vanuatu. That didn’t stop the the Australian Federal Court from shutting it down: Universal Music Australia v. Sharman License Holdings Ltd..

There hasn’t yet been a major decision on a case like this in Canada (yet!) but Michael Geist explains what might have happened if Kazaa got sued here. (Elsewhere I similarly explain what might happen if YouTube were sued in Canada.)

The Canadian Recording Industry Association has, however, threatened bittorrent trackers like Demonoid, and even shut them down. And there is an ongoing dispute before Canadian courts in response to a preemptive strike by isoHunt, which was trying to get a BC court to declare its activities legal, and a claim by the recording industry arguing the opposite. IsoHunt is now trying in its latest pleadings to turn this into a battle between copyright and people’s freedom of expression, which is going to be, well, let’s just say a tough one to win. Interestingly, IsoHunt had already been sued and shut down in the United States.

Coming back to the pimp/hotel analogy to Napster/YouTube, let’s turn our attention to the infamous “notice and takedown” scheme and safe harbour provisions of 17 USC 512, which we’ve talked about before in this class. These provisions are what govern takedowns of videos from sites like YouTube, as well as such website operators’ overall liability for copyright infringement. On this point, the big case is Viacom v. YouTube, in which Google had won round 1, on the basis of the precedent laid down in Universal v. Veoh. Even though Veoh won the legal case, it lost the war, being forced to shut down because it could no longer defend itself against Universal’s relentless assault. While Google was and is better resourced than Veoh to fight for the long haul, Viacom fared much better in round 2 of the match, gaining a favourable ruling from the Second Circuit Court of Appeals, which revived its case.

Another recent case decided by Judge Posner of the 7th Circuit (the same judge who decided Aimster), FlavaWorks v Gunter, concerning myVidster is a kind of hybrid between the pimp/hotel cases. In short, safe harbours are unnecessary for social video bookmarking websites on which users merely embed links to infringing videos, so long as – and this is a crucial caveat – the website doesn’t induce infringement.

Launching out from the DMCA’s notice and takedown system, we’ll also have to talk about the move toward a “graduated response” system in France, New Zealand and other countries, as well as Canada’s newly passed (but not yet in force) notice and notice regime in Bill C-11. To prepare for this discussion, you could skim parts of my article on “Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries?

Our next lesson, “Another One Bites the Dust,” looks at lawsuits against individual p2p users in the United States and Canada. And after that, our class, “Jailhouse Rock,” explores the criminal prosecutions we’ve seen recently against the operators of sites like The Pirate Bay and MegaUpload. To segue into that lesson from this one, I leave you to think about the controversy over this takedown of a video promoting file sharing site MegaUpload.