[PKFFW]

Originally Posted by Shaggy

Let me put it this way. Do you negotiate authorization to download copyrighted material with the copyright holder today? I'm not talking about purchasing material from a retailer, I'm talking about negotiating rights with the actual Publisher/Author anytime you download something? If you download material from a third party who is hosting it, do you have to go back to the original owner and ask for permission to download?

Obviously the answer is no. The reason for that is because authorization is not required for the downloader.

There is a requirement under the law that a person must act in a way that any other reasonable person would act.

Any reasonable person, buying an item online, would be justified in assuming the seller has the rights to sell that item. Therefore any reasonable person would not have an obligation to check the credentials of the seller. On the other hand, any reasonable person who goes to a torrent site and downloads a copy of Harry Potter free of charge would find it much harder to argue they "assumed the anonymous uploader had the rights to distribute this Harry Potter book for free to anyone in the world who wanted a copy". At least in the case where the page they got the download link from didn't in some way imply or state that they did have the authority to distribute it.

Originally Posted by Shaggy

Now think about who does have to negotiate authorization. The people who are making that material available (retailers, websites, hosts). Those are the ones who require authorization, because they are liable for copyright infringement.

Yes, the law is very clear cut when it comes to making material available. One must definitely have the authorisation to do so.

I have little doubt the reasonable man test would be applied to a downloader if a case was ever brought against someone who had only ever engaged in downloading. In such a case, sorry to say, the law simply isn't as clear.

Cheers,
PKFFW