From: Greg Broiles <gbroiles@netbox.com>
Date: Sun, 13 Oct 1996 03:24:10 -0700 (PDT)
To: Matthew Ghio <ghio@myriad.alias.net>
Subject: Re: SPA sues C2, other ISPs and users
Message-ID: <3.0b28.32.19961013032940.006d7c88@ricochet.net>
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At 08:45 PM 10/12/96 -0400, Matthew Ghio wrote:
>gbroiles@netbox.com (Greg Broiles) wrote:
>
>> The SPA has apparently adopted two relatively aggressive litigation
>> strategies - putting ISP's in the position of disclosing otherwise
>> confidential customer information or being sued themselves, and treating
>> peripheral data about copyrighted works like copyrighted works themselves
>> (e.g., serial numbers). Particularly interesting is that they seem to be
>> claiming that a *link* to a pirate FTP site is itself infringing
>> (potentially contributory infringement).
>
>Claiming that a link to a pirate FTP site is illegal, is a fairly difficult
>position to defend.  It's not illegal to say "someone is selling stolen
>property on the corner of First Street downtown".  It's just a statement of
>fact.  They could try to argue that there was some intent to commit a
>crime... but they'd have to have some real proof of that.

We're not talking about a crime here, but a civil action. There is a
doctrine in copyright law called contributory infringement, whereby a party
who intentionally helps another party infringe on a third party's copyright
can be held liable as a contributory infringer.

In the Ninth Circuit, the standard for contributory infringement is "[o]ne
who, with knowledge of the infringing activity, induces, causes, or
materially contributes to the infringing conduct of another, may be held
liable as a 'contributory' infringer". _Fonovisa v. Cherry Auction_ 96
C.D.O.S. 517 (CA9, 1996) 
<http://ming.law.vill.edu/Fed-Ct/Circuit/9th/opinions/9415717.htm>, citing
to _Universal City Studios v. Sony Corp_, 659 F.2d 963, 975 (CA9, 1981),
rev'd on other grounds 464 U.S. 417 (1984), adopting the standard from
_Gershwin Publishing v. Columbia Artists_ 443 F.2d 1159 (CA2, 1971).
California is within the Ninth Circuit; I presume that the suit against C2
was filed in California (probably Oakland), but I might be wrong.

>Their claim that "peripheral data" is illegal is a rather novel idea, and
>not supported (to my knowledge) by precedent.  I don't think anyone could
>argue that a serial number or password is by itself worthy of copyright
>protection, since it lacks any creative expression, so they are claiming
>it is "indirect infringement".

Yes, this is the basic thrust of contributory infringement liability - that
the defendant had an important part to play in the fact that infringement
took place, without being the direct infringer. Contributory infringement
(and its kissing cousin, vicarious infringement, whereby a person under the
defendant's control infringes to the benefit of the defendant) are
supported by precedent and have been for several years.

For example:

_Fonovisa v. Cherry Auction_, supra, where defendant swap meet operator
leased space to vendors who sold illegitimate copies of musical works, and
defendant was aware that those sales were taking place, plaintiffs had
stated a claim for contributory infringement sufficient to survive
Fed.Rul.Civ.Pro 12(b)(6) motion. 

_Sega v. Maphia_ 857 F.Supp. 679 (N.D.Cal. 1994), where defendant BBS
sysops' role in "copying, including provision of facilities, direction,
knowledge and encouragement" was sufficient to establish a prima facie case
of contributory infringement;

_ITSI TV Productions v. Cal. Auth. of Racing Fairs_ 785 F.Supp. 854
(E.D.Cal. 1992), finding no domestic contributory infringement where
plaintiff had no evidence of defendant's mental state or knowledge with
respect to direct infringements allegedly facilitated in Mexico, and hence
no subject matter jurisdiction;

_Demetriades v. Kaufmann_ 690 F.Supp. 289 (S.D.N.Y. 1988), adopting the
_Gershwin_ standard, indicating ".. just as benefit and control are the
signposts of vicarious liability, so are knowledge and participation the
touchstones of contributory infringement", rejecting a theory of
contributory infringement against defendants who only made two phone calls
to ask about copying of architectural plans and did not provide the means
or facilities for the actual copying;

_Gershwin Publishing v. Columbia Artists Management_ 443 F.2d 1159 (CA2,
1971), finding contributory infringement where concert promoter generated
demand for concerts, collected fees from performers who foreseeably
performed copyrighted works without license, and collected payments from
independent organizations it created to produce those shows;  

The famous (well, sort of :) _Universal City Studios v. Sony_ case where
the Supreme Court ruled that "time-shifting" videotaping of TV shows was
not an infringement was based on a contributory infringement theory. It
would have been impractical for Universal City Studios to find and sue
individuals who taped occasional TV shows for later viewing; so instead
they went after someone worth suing, the people who made the VCRs. 

The language in the SPA's press release -

"Piracy has taken many forms on the Internet. These include making
unauthorized copies of software available for download, the posting of
serial numbers, cracker and hacker utilities and links to pirate FTP sites.
Although many believe piracy is limited to "warez" or illegal copies of
software, it extends beyond that narrow definition. Under the law, anyone
who knows -- or should have known -- of the infringement and who assists,
encourages or induces the infringement is liable for indirect infringement.
In each of the actions SPA filed, at least two of the above infringements
were present."

seems to imply that they may be thinking of contributory contributory
infringement - e.g., if (directly) distributing serial numbers or cracking
software is contributory infringement*, materially contributing to that
material contribution is also infringement. But this seems awfully
attenuated from the actual harm. (I don't see much controversy about the
idea that putting copyright-protected software up for FTP without the
copyright holder's permission is illegitimate; and the notion that merely
providing a link to someone else's site is infringement (or even a
"material contribution") seems to go much too far. Is a link to a site
which links to a site which infringes an infringement? How many links is
enough to escape liability? How many links are there between any two web
pages, cf. "six degrees of separation"? :)   

* (because it "materially contributes" to the creation of an unauthorized
copy, since the copy of a program being executed in RAM is distinct from an
on-disk copy and without cracking software or serial numbers there will be
no RAM copy and potentially no initial infringement. _MAI v. Peak_ 991 F.2d
511, 518 (CA9, 1993) cert dismissed 114 S.Ct. 671 (1994) and _Triad Systems
v. Southeastern Express_ 95 Daily Journal D.A.R. 11821, 95 CDOS 6890
(August 31, 1995), also see <http://www.io.com/~gbroiles/triad.html> for my
own crankiness about _Triad_) 

>A few months ago I saw Sameer grumbling about people "not paying for
>Apache-SSL".  Now SPA claims he's operating an ISP to promote piracy.  So
>first he's a software publisher and now he's a software pirate.  Uh, yeah,
>whatever.  Obviously SPA is on a PR campaign here which defies all
>conventional logic.

It looks to me like they're trying to achieve results through fear and
intimidation that they can't reach via persuasion; e.g., they are trying to
create a climate where ISP's turn over user information without a fuss
because they don't want to be sued themselves; and where users (and home
page "publishers" or authors) are afraid to even discuss infringement, or
do anything even close to the conceptual lines between fair use,
noncommercial alterations of works (a la _Galoob v. Nintendo_ 964 F.2d 965
(CA9, 1992), where defendants' marketed a "Game Genie" which altered the
play of Nintendo cartridges used in concert with it, held to be
noninfringing), and infringement. 

There are some situations where "cracker" software cannot be characterized
as inherently illegitimate - many people may want to disable copy
protection on software they've legitimately purchased (or "licensed", if
that's your view on the shrink wrap question) because it's annoying or
incompatible with their hardware configuration. A person with a legitimate
copy of software on CD-ROM may want to use it on their non-CD capable
laptop, or use it over a nonstandard network. For example, my legitimate
copy of Warcraft II won't run unless it sees its parent CD in my CD-ROM
drive; which means I can't start a music CD of my choice in the CD-ROM
drive and then run my legal copy of Warcraft. (But I probably should be
working anyway.)  Assuming the user is otherwise playing nicely (e.g., one
license per user, blah blah blah) there's no reason to think that disabling
copy protection is somehow illegitimate. 

But it's getting late. More tomorrow. 
--
Greg Broiles                |  "We pretend to be their friends,
gbroiles@netbox.com         |   but they fuck with our heads."
http://www.io.com/~gbroiles |
                            |