On 7/13/05, Glenn Maynard <[EMAIL PROTECTED]> wrote: > #1 is "why is the Napster downloader guilty"; I don't have an answer to that > (though I believe that's only due to my poor understanding of copyright law, > and not evidence supporting Sean's argument).
As I see it, the Napster "downloader" isn't guilty of direct infringement; the "uploader" is. But note that the appellate court split the responsibility differently: <quote> Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights. </quote> This would make the "distribution" _precede_ the copying, which is IMHO bizarre. But as far as I can tell (IANAL) that's dicta anyway because it makes no difference to Napster's culpability which one is the direct infringer. The Napster injunction was upheld due to the likelihood of success of vicarious liability and/or contributory infringement claims a la Gershwin v. Columbia. Napster both "induces, causes or materially contributes to the infringing conduct of another" (contributory infringement) and "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities" (vicarious liability). Now, suppose that the mechanics are such that the uploader is the only one infringing directly. Still, assuming that uploader and downloader have colluded in the making of copies that they both know to be unlicensed, there is no difficulty in finding vicarious liability on the downloader's part, which allows recovery of the penalties for direct infringement from the party that benefits. You have fraudulent intent, you have conversion, you have conspiracy; that's more than enough. The degree of conspiracy and fraudulent intent that can be ascribed to the downloader is a lot higher than that involved in accidentally buying a counterfeit CD -- but note that it may not be safe to make even that mistake too often (though penalties greater than confiscation seem unlikely). None of this is relevant to browse-wrap situations where the distributor has authority to make copies and distribute them without obtaining formal acceptance of a license. I don't see how the theory that a downloader accepts through conduct a single-use copyright license, as a hook on which to hang an RTU without a minimal click-through standard of "meeting of the minds", can survive Specht. Cheers, - Michael (IANAL, TINLA)
