Ninth Circuit Clarifies that “Willfully” Means “Willfully”
I think most people know that there is such a thing as criminal copyright infringement, i.e., copyright infringement so heinous that the U.S. government will take time from investigating drug deals to investigate the copyright infringement. How heinous? So heinous that even Jammie Thomas-Rasset, who was found liable for allowing 24 song files to be downloaded via a peer-to-peer network, and was found liable for hundreds of thousands or millions of dollars in damage (depending on which jury you ask)—even she did not do something heinous enough. I mean, it really has be terrible, terrible, terrible. Like, industrial-scale terrible.
Actually, that’s technically an exaggeration (though it’s true as to Thomas-Rasset). As a practical matter, the FBI and U.S. attorneys prefer to expend their limited resources on truly large-scale operations*, the law only has two additional requirements that make garden-variety civil infringement into criminal infringement. First, the act of infringement must be committed “willfully.” Second, it must have an economic motivation.**
* Generally speaking, in criminal law, the trend has been to making more and more things illegal (and increase the punishment), then leave it up to prosecutors and police to decide whether … Read More»
Part 3: Will Willfulness Ride to the Rescue?
In the first part of this three-part series, we tried to put the MU Indictment into a practical context. Last time, we started to look at the substance of the legal issues, starting with the government’s case. We concluded that, because of some essential differences between civil and criminal copyright infringement, the government’s case isn’t as easy as we civil lawyers would have thought (though I think the government will find some way to make it work).
Now, we’ll apply the same logic to MU’s DMCA safe-harbor defense. It turns out there probably isn’t such a thing as a DMCA safe-harbor defense in criminal actions, but that may not make much of a practical difference because of the criminal action’s willfulness requirement.
Of Course the DMCA Covers Criminal Actions. It’s in Here Somewhere…
If you’re a civil copyright lawyer like me, the DMCA safe harbors are almost an article of faith. Without it, the Internet would be a very, very, very different place. (Whether it would be a better or worse place, I cannot say.) So it comes as something of a shock to discover that it might not apply to … Read More»
Part 2: The Government’s Unclear Path to Conviction
Last time, I tried to give some practical perspective to the Megaupload Indictment. It was, at the same time, business as usual and completely extraordinary. I predicted (we’ll see how accurately) that MU will be the only major indictment of its kind in the medium term. I gave two reasons for it. First, indicting MU served its broader purpose of sending a message to other file-sharing sites. Second, the government will probably want to see how well its legal theories do–because, as we’ll discuss this time, the government’s case isn’t as straightforward as many of us (including me) thought it was.
For purposes of post, we’re going to ignore the “easy” parts of the government’s case, i.e., those involving direct copyright infringement, because the lessons there are less applicable. I assume that legitimate file-sharing sites are at least careful enough not to engage in direct copyright infringement (other than, arguably, distribution, which is a vexed issue).
Primary Consideration, Secondary Liability, Uncommon Law
Part 1: Situation Normal: The Sky’s Falling
I’ve put off blogging about MegaUpload (“MU”) for several weeks now–too long, really–for a few perfectly good reasons. I’ve been busy. I’ve been sick. Mostly, though, although I can talk about the DMCA at length, I’m not super familiar with criminal procedure. I do, however, have some experience with FBI investigations, since sometimes a lawyer has to ask the Department of Justice to intervene in a criminal matter, and the FBI is usually pretty good about keeping you informed.
In the meantime, the dramatic events of January 20, when New Zealand authorities descended on the multi-million dollar pad of Megaupload founder Kim Dotcom (and cutting him out of a “safe room”*), is old news now. The fall-out has shaken out, with several music-sharing/locker services radically altering their business practices.
* What’s the point of a “safe room” if the police can still cut you out?
But I have been given a reprieve, because just a few days ago, the Department of Justice filed a superseding indictment against MU (which you can access here). It’s honestly not that big a deal, but I can pretend it’s significant enough to write a couple … Read More»