Quote:
Originally Posted by Tempest
Vicarious infringement is a possibility..
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In order for Vicarious Infringement to apply, the following must be true:
-The vicarious infringer must benefit financially from the infringement
-The vicarious infringer must be capable of controlling the direct infringer
In YouTube Inc., et. al. vs Viacom International, Inc., YouTube is a vicarious infringer because they benefit from the infringement through ad revenue. And they are capable of controlling the direct infringement because they can delete the videos that reside on their site.
However, this is only Viacom's argument and has not been decided by the Court. YouTube is likely to argue that they do not benefit from the infringement itself; they benefit from ad clicks.
In order to accuse AFF of vicarious infringement, you would have to argue that AFF is benefiting financially from it:
-This is a tricky argument and becomes a slipperly slope because you could argue the same about many companies. So how related AFF is to the infringement itself is questionable.
You would also have to argue that they are capable of controlling the infringement:
-They have no authority over the videos present on the Tube Sites
-You could argue that they are capable of controlling the Tube Sites because they are funding them.
-But the law says that they have to be capable of controlling the "direct infringer". The Tube Sites aren't direct infringers - the users who upload the videos are. And AFF isn't capable of controlling the Tube Site users.
-Moreover, it is not a very persuasive argument that AFF is capable of controlling the Tube Sites, because the Tube Sites have other revenue than that which is derived from AFF. A few charge monthly fees, and many others have advertising from a number of other companies, including Brazzers.
Speaking of which, I can't understand why people are complaining so much about AFF and completely ignoring Brazzers.
In fact, you have an even stronger argument against Brazzers. You still won't win, but at least with Brazzers you could argue unfair competition. They are advertising on websites that infringe on the copyrighted works of their competitors (other porn sites).