[PKFFW]

Originally Posted by Shaggy

No, that is a different scenario. If both, as you say, are printing copies and both are distributing them, then they would both be guilty of direct infringement. I didn't say they had to own the original, just possession/access to it.

This is exactly what is happening with downloading from the internet. Both parties are, by dint of using their computers, making copies of the work. The uploader is making the original file available and is transmitting it to me, it is I who am requesting the file, enabling my end of the distribution chain and organising that data into a usable copy.

Just as if I went to a library and photocopied an entire book, that would constitutes making and unauthorised copy and would be classed as copyright infringement.(assuming no fair use rules etc) If the librarian shows me how to do it, sets it up and leaves me to press the copy button I believe any judge would rule that we were both party to the direct infringement of the copyright.

Originally Posted by Shaggy

If the friend buys them the printing press but does not directly engage in printing/distribution, then they may be guilty of indirect infringement according to the law. They would have to show that the friends actions knowingly caused the book owner to commit infringement. IE, they would have to prove that the friend knew the book owner was going to use the press illegally. The friend could also argue that there were legal uses for which the given press could have been used, and they didn't know it would be put to an illegal use.

This is the law that was used against Sony in the Betamax case. The MPAA tried to argue that Sony was guilty of indirect infringement when they manufactured the VCR. The idea was that Sony should be held liable for causing/inducing individuals to copy video tapes. Obviously that argument was turned down.

This was not the scenario. I specifically stated that the friend helps to print of a bunch of copies. This has to do with whether or not p2p software is legal and such. That is not my point. Yes I could argue "but my p2p could be used for legal purposes but I may very well find that if I am using it for an illegal purpose, as ruled by a judge, then it doesn't matter if it could be used for legal purposes or not.

By actively requesting a copy of Harry Potter, by enabling my end of the distribution channel, by owning and accessing my computer to make a copy I may very well find, if ever brought to court for it, that I am found guilty of copyright infringement because I did not exercise the due care any reasonable person would in order to ascertain whether or not the work was under copyright and whether or not my source had authorisation to distribute it to me for free via the torrent.

Originally Posted by Shaggy

I disagree. The downloader has not directly engaged in copying or distribution. They merely requested it. Therefore they are not guilty of direct infringement. Their actions may or may not be shown to have knowingly caused the uploader's direct infringement, but that is what indirect infringement is about. Knowingly causing distribution is not the same as actually distributing.

They have engaged in copying it and have aided in distribution(at least to themselves). As you said earlier, you are not claiming one needs to possess or have access to the original in order to engage in copyright infringement. As you have also pointed out, every time you view a website you are making a copy onto your computer.

Now, whether or not that fact alone constitutes copyright infringement is up for debate. I would agree that in most cases it does not. However it may very well be that in other cases it does. Until it is tested in a court we simply wont know.

Originally Posted by Shaggy

To be clear, there are two situations being discussed:

(1) Is downloading unauthorized material direct infringement?
(2) Is downloading unauthorized material from p2p (or other nefarious sites) indirect infringement?

I am primarily concerned with (1) above. Many people are making the blanket statement that (1) is true.

In my opinion
(1) Absolutely not. If that were true the internet would be unusable. Remember, for direct infringement the intent doesn't matter. It makes no difference if you are downloading from a legitimate site, or from the pirate bay.

There is nothing in the law that says all scenarios must be treated exactly the same. This is why killing a person is not always considered murder.

To argue that "the internet would be unusable" if one is required by law to exercise the due diligence that any reasonable person could easily exercise is nothing more than hyperbole.

Originally Posted by Shaggy

(2) It is not direct infringement, but may possibly be indirect infringement. There are some extra hurdles they would have to go through in order to prove that (which won't be easy), and it has never been attempted against a downloader that I know of. This is where the "reasonable person" test that you talk about comes into play. If someone torrented "Harry Potter -- ILLEGAL VERSION", then it is possible the plaintiff could go for indirect infringement. They would have to show that the downloader had reason to believe that the material was unauthorized AND had reason to believe that their actions would cause the unauthorized infringement. If they downloaded "HPBK1", then probably not.

It may or may not be direct infringement. It may be ruled that in some cases it is and some cases it is not.

Originally Posted by Shaggy

Nobody knows what will happen in (2), but that is a FAR different situation than the people who were claiming that downloading unauthorized material is illegal. The latter has VERY far reaching consequences.

Just as any situation that is unclear under the law could have very far reaching consequences. That is why the law is an evolving thing that is changed and updated as new situations and scenarios come into play and are considered.

Suggesting the entire internet will grind to a halt if it is ever ruled that downloading Harry Potter from a torrent site without making any reasonable attempt to ascertain if it is a legit copy is ruled to be copyright infringement is a tad alarmist. I'm sure if any such ruling were made it would be immediately followed by much discussion and updating of laws regarding what equates to "resonable attempts" when it comes to ascertaining if the copy is legit. For starters I would think a reasonable attempt would at the very least include if the uploader was asking money for it that would absolve the downloader of any infringement right off the bat.

Originally Posted by Shaggy

The trick with (2) is where do you draw the line with "nefarious site". Pick a site at random and click on a link. Google for "Harry Potter" and click on a link. Find a torrent for "HPBK1" and click on the link... Google for a song title and click on a link that you assumed was for a review, but end up getting song lyrics instead. Say each of the above directed you to copyrighted material... It is by no means certain that all instances of (2) are cases of indirect infringement.

This, I'm sure is where much of the debate would be centered. Rather than shutting down the internet completely, I'm sure law makers would try to nut out the different scenarios and apply laws as needed.

Cheers,
PKFFW