> We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
What an obscene abuse of power that ruling is. Are gun shops liable for the mass shootings that take place by people that bought guns there? Didn't think so. Going after the tool-makers is right out of the authoritarian playbook.
I think there's a valid distinction between a product that can be misused but has a legitimate use, and a product solely built to enable illegal activity. If the business knows their product isn't useful for anything but crime, the only reason they're in business is the crime.
VLC Media Player is a multi-use video player sometimes used to play pirated videos. BitTorrent is a peer-to-peer file transfer protocol designed to transfer and distribute large files efficiently. Popcorn Time is explicitly built to find and play illegally shared content.
Practically I agree with you, but I'm not sure there actually is a distinction in a legal sense. Technically Popcorn Time can be used to watch legal/non-pirated content, so they have some form of plausible deniability.
I could go down the street to the smoke shop and buy myself a bong right now, because technically I could use it to smoke tobacco, even though everyone knows that's not what 99% of people are doing with them. You don't see the ATF or DEA shutting them down.
This is (legally) a fair point. If you're linking to illegal content then perhaps that is grounds under this particular ruling for a takedown.
In general though, I object to links themselves being illegal content. If you give somebody the phone number of a drug dealer, can you be charged with selling or distribution of drugs?
The law fundamentally builds on the concept of intent: Did I give you Steve's phone number, or did I give you the phone number of Steve, my drug dealer, because you were interested in buying drugs from him. Criminal law depends on both the actual act, and the intention to commit a crime. That's why most technical workarounds people claim should exempt them from the law tend to not work: The intent is the same.
Disclaimer: I do not actually have a drug dealer named Steve.
Proving intent is the most difficult part of criminal law. If intent was all that mattered, why does Google remove copyrighted links from its search results? The intent for Google clearly isn't to distribute illegal content, but to provide links to as much as possible on the web (or at least, it used to be). But even DDG compiles with DMCA. A generic search engine is still required by law to take down links, even if the intent isn't there. Which proves that the mere act of "handing over a phone number" is enough.
But that's not what Grokster said. It was to the effect that if you promote your service for piracy then you're liable even if it does have non-infringing uses.
The result has, ironically, been quite an inconvenience for copyright holders, because it meant that the developers of piracy-enabling services merely stopped promoting them as such even though nothing about the technology was any different, which made it harder to shut them down because of the optics. If you have someone producing a mixed-use technology but actively promoting it for infringement then it's easier to convince a judge that they're the bad guys. Now that any company with lawyers doesn't do that anymore, it's a lot harder to paint that picture.
Technology-wise there isn't much in Popcorn Time that wouldn't still be there in a legitimate YouTube competitor.
And this gets double complicated when it's software rather than a service because (presumably) the liability for promoting infringement would be on the people doing the promoting, but what does that mean for the software? What happens if somebody else who isn't promoting infringement starts distributing a version of the same code? Is it different than some independent code which does exactly the same thing?
One person's "abuse of power" is another's judicial activism [1].
MGM v. Grokster [2] effectively held that distribution for the purpose of encouraging illegal activity can create liability for that illegal activity. See MGM v. Grokster at 919.
Applied to your gun shop example, do gun shops distribute guns for the purpose of encouraging illegal activity? Proponents of MGM v. Grokster would say no and that this may be the very distinction that the court was trying to highlight. I.e., distribution for the purpose of illegal activity versus distribution for legal activity.
From this perspective, it seems Popcorn Time may not have learned from MGM v. Grokster. Specifically, highlighting and promoting the illegal uses of a product may incur liability for those illegal uses. It may not be a silver bullet, but highlighting only the legal uses of a product may reduce the chance of MGM v. Grokster from being used to create liability for a product that has both legal and illegal uses.
No but they do have liability to perform background checks as per law before selling the firearm. If they do so, they are ok. If not, the law will go after them. This is not dis-similar to how GitHub has safe harbor as long as it follows the DCMA process
Background checks don't prevent people from doing what they like. What would the parallel be with software? Checking their criminal history for piracy or hacking crimes before allowing software downloads? Absurd.
According to the notice the code in the repo included links to pirate sites, so it seems to be the case that it not only promoted copyright violations, but directly enabled them. I wonder if the takedown would still have been possible if those links would have been located outside of the repo.
That seems likely the case. Plenty of tools enable copyright but don't do it for you. For instance, Blu-ray decoder applications generally can operate unharassed as long as people have to "find" the decryption keys elsewhere.
The fact that Popcorn Time comes preconfigured to find illegal content is what they're going off of, and it looks like in Popcorn Time's reply, they're claiming the removal of those specific configuration files, they want the repository restored.
As usual, I truly love GitHub's policy about handling these complaints publicly, they offer so much direct value in being able to see the process and procedures outside of any sort of NDAs.
Just to be clear, I'm not joking here. I've had photos boosted by a reputable publication. When I called them out on it, they paid my invoice. But Pinterest has made a fine living from wide-scale violation of the copyrights of photographers and graphic artists everywhere. The main difference with PopcornTime and this takedown is that the movie industry can afford a lot of well-paid lawyers in a way that rando photographers like myself can't.
