Tuesday, February 07, 2006

Inducing Infringement of Copyrights Act of 2004; the MGM v. Grokster ruling

In 2004 the Senate introduced a bill that would strengthen civil and perhaps criminal penalties for companies (or perhaps) individuals who intentionally encourage others to engage in copyright infringement. This activity probably focuses largely on illegal music downloading (as through peer-to-peer computing) and movie piracy.

The bill would appear to strengthen the idea of downstream liability for the copyright infringements of others. This has always been an issue in copyright law. A company that abets copyright infringement (such as a copy center, printer, publisher, or retail company) can be held liable if it participates in deliberate infringement.

Detractors from the bill have been concerned that it would penalize hardware and software vendors who provide instruments for legitimate use, such as for filmmakers to share their own films or burn their own DVDs.

The concept of downstream liability was tested in June 2005 with the Supreme Court, in MGM Studios et. al. v. Grokster. Ltd. The Court held that companies whose business model is predicated upon encouraging copyright infringement could be held liable for the actions of their customers. This is so even if the services of these companies have some legal uses. There was concern that a ruling in this case could impute downstream liability to ISPs for their customers, and some ISPs have been more aggressive in pursuing infringement claims against their subscribers and in providing mechanisms to for complainants to report infringement. However, ISPs probably would not be held liable for the actions of their customers if they act in good faith and if their business model as a whole is not predicated on infringing activity.

Editorial on filesharing problem

Letters to Senators Allen and Warner, and replies

Another important concept is the DMCA "safe harbor" for ISPs and OSPs. See

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