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Tuesday, April 08, 2003
Big Daddy responds: Your appeal to my not-yet-fully-developed legal curiosity worked. It looks like the RIAA's court case is pretty weak, though they have a strong sword with which they can eventually shut down the site. Basically, the author made a search engine specific to Princeton computers. Not a Web search engine, but a search engine for shared Windows files. (All of them, not just MP3's). Instead of searching for HTML, PDF, DOC files et al like Google, this just searches all files--it's really no different. The direct copyright infringement would never fly without some proof of direct infringement. This kid can't be liable for direct infringement for making a search engine unless they can show that he himself used the search engine to copy files himself or his computers made illegal copies of the files. Just like Sony could never be liable for direct infringement for other people taping copyrighted shows on a Sony VCR, and just like Napster's search engines never passed the files through its central servers, this guy himself never copied files nor passed them through his servers. As for contributory infringement, he made a search engine, just like Google, which is safe under the DMCA unless the company can show actual knowledge of infringement by users. Herein lies the rub, as noted in the DMCA: once the copyright owners inform the administrator of the search engine of a copyright infringement going on through his search engine, the admin has to eliminate the infringing use! This is the "filter" that killed Napster, and the RIAA can do the same thing to this guy. They can hound him with letters indicating each and every copyrighted file on each computer--this is the "actual knowledge that the material or activity is infringing." In turn, this guy has to take them all down or he'll THEN face liability for contributory copyright infringement...the time investment required by such a policing effort will probably be the death of wake. Google has tons of money to hire somebody to do this...this college kid probably does not. One additional note is that the RIAA makes no attempt to attack with the third standard flavor of infringement, "vicarious copyright infringement," which generally occurs when there are infringing users over which the defendant has some control, and when the defendant receives some (generally financial) benefit in return. Given that Napster had ads and what-not, they were liable for vicarious infringement. This guy is probably safe from a vicarious liability claim, since it doesn't appear to be a commercial venture. Hope that helps some! -Big Not-Yet-A-Lawyer Grenks 0 Comments:
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