A Copyfighter’s Musings

Aaron Swartz’s summary of the Aimster hearing mentions that the judges discussed whether Aimster might be liable for vicarious, but not contributory, infringement.  Some scattered thoughts on the matter:

To start, let’s get an idea of what the distinction is in terms of purpose and definition.  One key difference is that you don’t need to have knowledge of infringement to be vicariously liable, but you do for contributory liability.

That difference could produce some circumstances where a service is liable under one doctrine but not the other.  Indeed, that’s an issue in Aimster: does Aimster need specific or general knowledge of infringement? If specific, what does that constitute exactly? It’s probably something more than just screenshots, but perhaps something less than notices about individual files transfers. 

Aimster thinks its encryption system for each transfer provides it protection, but I find that highly doubtful. You can still see the songs up on the index, thus violating the distribution right (as argued in Napster). Moreover, as in Napster, the company’s owners discuss and even boast about the potential for illicit file sharing – Club Aimster does not help there case here.  While I disagree with the district court’s reasoning that the encryption is not a valid defense because they can simply remove it, I generally agree that the encryption doesn’t prevent all liability.

How you define specific knowledge will affect the viability of contributory and vicarious liability used in conjunction.  In most cases, it will be rather easy for copyright holders to take screen shots and send legal notices to system operators.

But there’s another part to contributory liability that affects the knowledge requirement – a capacity to act on the knowledge (at least, that’s what the courts noted in Sony and Napster, and what the EFF argues in Aimster.) Here’s where the liability lines blur.  A capacity to act sounds a lot like a right and ability to control. Perhaps this point fits more closely to “material contribution,” for providing the “site and facilities” generally means you have a capacity to act directly on the P2P system. As put in Grokster, “The question, however, is whether actual knowledge of specific infringement accrues at a time when either Defendant materially contributes to the alleged infringement, and can therefore do something about it.”

One potential for application of only one liability doctrine: say the P2P system is run strictly non-profit. That’s pretty unlikely, generally speaking.

So here’s where I think we end up: in most cases, copyright holders will send infringement notices to P2P operators.  Thus, they will still be able to proceed on both infringement grounds.  With some exceptions, P2P operators will also derive at least some financial benefit from the infringement, because infringement will be a “draw” for users.  The only question then is, is there a difference between material contribution with a capacity to act, and right and ability to control.  In Napster, I doubt you could make this distinction. Providing the index and logon servers was the material contribution, but it was also the means to control.

In what circumstances would the right and ability to control not go hand in hand with a material contribution?  Perhaps if Morpheus had extensively communicated with customers, provided technical support, and really directed people to infringe copyrights, that would have made a difference. They could stop materially contributing in that way. But that still wouldn’t have provided a capacity to act on the direct infringement.

Filed by Derek Slater at 8:32 pm under General news
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