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If this applies to torrent sites, wouldn't it apply to tube-sites?
From the EFF's article, "What Peer-to-Peer Developers Need to Know about Copyright Law"
In the wake of recent decisions on indirect copyright liability, it appears that copyright
law has foisted a binary choice on P2P developers: either build a system that allows for thorough
monitoring and control over end-user activities, or build one that makes such monitoring and
control impossible.
Contributory infringement arises when you have ?knowledge? of, and ?materially
contribute? to, someone else?s infringing activity. The chief battleground for contributory
infringement in the P2P cases so far has been the ?knowledge? issue, with copyright owners
dumping box-loads of infringement notices on software developers, hoping to create
?knowledge? of the infringing activities of end-users.
The law of contributory infringement therefore presents a developer with a binary choice:
you can either include mechanisms that enable monitoring and control of user activities (and use
them to stop allegedly infringing activity when you receive complaints), or choose a truly
decentralized architecture wherein such monitoring and control is impossible without extensive
redesign. (Copyright owners have begun arguing that you must redesign future versions of your
software to prevent infringement. This argument has never been accepted, but the Supreme Court
did say that a failure to take steps to implement filtering can be relevant to establishing ?intent?
for inducement purposes.)
Vicarious liability also requires that the plaintiff demonstrate that you ?control,? and
receive ?benefit? from, someone else's infringing activity. The ?benefit? element will be difficult
to resist in many P2P cases (at least for commercial products)?so long as the software permits
or enables the sharing of infringing materials, this will serve as a ?draw? for users, which may be
enough ?benefit? to result in liability according to some precedents.
So the fight will likely center on the ?control? element. The Napster court found that the
right to block a user's access to the service was enough to constitute ?control.? The court also
found that Napster had a duty to monitor the activities of its users ?to the fullest extent? possible.
Accordingly, in order to avoid vicarious liability, a P2P developer would be wise to choose an
architecture that makes control over end-user activities impossible.
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