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Originally Posted by RawAlex
Gideon, if you are going to argue a point of law, you need to learn how to read law.
"evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement"
Let me try smaller english for you.
Just finding that a copyrighted work has been copied doesn't mean it was given away with the plan of getting around copyright. Just finding that it was given away to someone does mean that it was given away with the plan of getting around copyright.
Got that? We agree, right?
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Taking a copyrighted DVD, example, and making 1000 copies and handing them out to people is willful intent, right? The intent is to give a bunch of people something that they likely don't have the rights to. To even make 1000 copies, you have to violate the terms of purchase, right?
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i suggest you read the wikipedia article about a movie called Charade
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According to various sources, Charade is now in the public domain due to a legal irregularity: no claim of copyright was put into the original prints, even though copyright notices were mandatory in the US prior to 1989. This error did not become a serious problem until the introduction of VCR equipment, which meant that companies could produce retail copies without the need to pay licence fees. As a result, there are many editions of Charade on VHS and DVD, of widely varying sound and picture quality. The restored Criterion DVD edition sells, on average, for ten times the cost of most DVD releases of the film. The film was included as a bonus feature on the DVD release of its remake, The Truth About Charlie.
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The act of making 1000 copies is not in and of itself a copyright infringement, it is the act of copying AND distributing beyond the scope of the liciencing agreement. Without the scope limiting licience "charade" the act of copying and releasing (even for a a profit) was just LEGAL.
Before you argue that you are not giving away such a right, remember that you can't TOS away fair use rights. And the copyright act in and of itself gives those rights.
so the parallel you are trying to draw is not really parallel.
i would give you a more accurate parallel
suppose i own a store selling dvd. i burn 100 copies of a brand new movie. and at the check out i give them one of these burned copies to be use as their "fair use" backup of the movie they just bought.
That act would NOT BE CRIMINAL because while i am distributing and copying i am only distributing within the scope of "fair use".
Now before you point to the fact that i am getting proof that they own the content by tying the granting of a copy to a sale. you have to remember that this is a real world example, and the internet bar is set a lot lower.
AND YOU KNOW THIS. (see next point)
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So, taking the same DVD and putting it up on a torrent site accessable for free by tens of thousands of people IS the intent to violate copyright. The person putting it up doesn't care if anyone else who receives it has the right to or not.
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Again the key point is that you are trying to associate real world situation with internet when you know such an associate is not valid.
If you owned a porn shop selling porn dvd and a 16 year old walked in and tried to buy a dvd. If you sold it to you would be guilty of the crime of distributing porn to minors. You would be dragged of and sent to prison for 3-5 years.
The expectation in the real world where you have face to face interaction during the buying process is that you check the id of the individual (drivers licience, health card, age of majority etc)
Now move to the internet, you take the credit card and that it, you don't ask for a driver licience, and you don't have to, because in the case of the internet trying to get all that documentation is ubsurdly problematic. If minor (little johnny) commits the crime of identity theft ( fraud) to gain access to your porn you are not responsible.
The bar is set much lower in the case of the internet, and the TPB is taking advantage of that just like you are in your case.
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TPB is part of the process of this infringement. Without TPB and their trackers, people wouldn't be able to find these files. In your own words, "THEY ARE A CONTRIBUTORY INFRINGER" because they are very much aware that much of the material on their site is used without permission. They have the DMCA notices, the legal contacts, and the noticed from the MPAA and RIAA to prove it.
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world wide there are three levels of copyright infringement
direct - i make a copy and i give it directly to you
intermediate - i make a copy, put the actual content up
on the intermediary, you download that copy from the intermediary.
Contributory - I share a copy , you connect to me directly the trading of content only involves us, as a third party you contribute in some way without getting directly involved.
US law combines intermediate and contributory together and classifes it all as contributory.
CANADIAN, EU don't recognize contributory (indirect) and only recognize the first two.
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So you and I agree. TPB is breaking the law, particularly they are breaking the EU law on copyright. The only think protecting them is a hair thin crack in the Swedish legal system that the goverment there appears to be loath to fix.
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no we don't agree, you are misrepresenting indirect or contributory infringement as intermediary. While all intermediary infringements are contributory all contributory are not intermediary. Just like all odd numbers are numbers does not make all numbers odd.
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if any of the owners or operators of TPB came to America, I would expect them to be served on the spot, and potentially even face criminal charges. They have taken literally hundreds of millions of dollars out of the economy with their little games.
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See i would disagree, they are not criminally violating the copyright act, if they setup operations within the united states then those assets and those assets alone would be seizable because the scope of US law would apply.