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Originally Posted by JoeD
Not sure how that may have played out, it may have made for a more interesting case if it had been tested. She did mention they require "both knowledge of direct infringement and material assistance to the direct infringer"
I'm not sure how to interpret that really, is there an implied ordering in the statement? For example, if you know someone is an infringer and direct them to tools, I imagine that's contributory infringement. However, if as in this case, they had no reason to know/treat their customers as infringers at the time they directed them, would whether or not they later became infringers alter it to contributory infringement?
Either way, for the case as reported, I think the correct decision was made. The company was not encouraging people to use the tools and then upload/share and they had a valid use case for why the customers would need to remove DRM other than to infringe copyright.
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The context helps a bit:
- Abbey House is suing for reparations over the damage done to their ebook business.
- the Judge effectively ruled in their favor by sending both parties to arbitration to define the damages, from anything from zero to millions
- in order to mitigate the likely payout, Penguin and company claimed contributiry copyright infringement
So the judge looked at the claim and said, in legalese; "You didn't prove any infringement took place, much less Abbey House had anything to do with it if it even occurred."
The issue raised before her was copyright infringement, not DMCA violation, so why would she go out on a limb opening a can of worms that wasn't placed before her?
The counterclaim was something of a hail mary and thrir lawyers are no Doug Flutie.
Quote:
Originally Posted by JoeD
One bit I'm also interested in from that link, is the bit about the DMCA. Since removal of DRM from ebooks isn't in the exceptions allowed, I wonder why they didn't just sue under the DMCA rather than going for a contributory infringement, maybe the outcome would have been different? Maybe they'll file a new case under the DMCA now?
Unless they're not sure trafficking in really does just mean pointing people to an application, especially when nothing that application does nor the site it's on has anything to do with DRM removal.
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Nobody in the content business wants to litigate DMCA.
They themselves aren't sure they can win.
Given the recent performance of the BPH lawyers, they have good reason to be wary.