The New Freedom

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I sent an email to Sam Bayard of the Citizen Media Law Project telling him about Paul’s RIAA woes. I asked him if linking was a crime and his verdict was no. Of course, this is still just one man’s opinion, but he is a very well informed man.
I’m assuming he’s not going to mind me posting the email here..:

Thanks for contacting us and drawing our attention to this interesting
case. I’m going to give you some general feedback about the legal
issues involved, but you should not treat this as legal advice specific
to your friend’s situation (see my disclaimer at the bottom of the page).

In general, linking to copyrighted material is not an infringement
because no copy is made or hosted on the linking person’s site. So, it
is pretty clear that Jukebox does not directly infringe anyone’s copyright.

However, services like Grokster, Napster, etc. that help others
infringe copyright have been found liable under secondary copyright
infringement theories — contributory infringement and vicarious
infringement.

Contributory infringement exists where one (1) has knowledge of
another’s infringement and (2) either materially contributes to or
induces that infringement. Here, your friend would have a good argument
that he/she has no knowledge of any specific infringing acts because the
jukebox app is capable of significant non-infringing uses (this seems to
be the case from my understanding of the facts — the program could
enable users to play mp3s that are placed online by the copyright owner
for public consumption for free, or mp3s that are licensed under a CC
license; query: does it allow them to play files on their own computer?).

The Supreme Court complicated this issue a bit in the Grokster case by
recognizing a form of secondary liability known as “intentional
inducement.” The court said that where there is evidence of a device’s
characteristics or knowledge of how it may be used (i.e., it was clear
how Grokster could be used to infringe), combined with “statements or
actions directed to promoting infringement,” then the person or entity
distributing that device may be held liable despite lack of knowledge of
specific infringing acts. The court said “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.”

Without looking too deeply into the specifics, it seems unlikely to me
that the jukebox app fits into this category of intentional inducement.

Vicarious infringement exists where one (1) has the right and ability
to supervise the allegedly infringing activity and (2) receives a direct
financial benefit from the infringing activity. It doesn’t appear that
your friend has any right and ability to supervise outside web pages or
whomever may be posting infringing material accessible by the apps
users, so this doesn’t seem like much of a problem.

I hope this helps a bit.

Best,
Sam

I don’t think Paul is going to take it down. Facebook are yet to comment, so I don’t know what will happen next. This will be interesting.

R

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