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Re: Bug#317359: kde: ..3'rd "Help"->"About $KDE-app" tab calls the GPL "License Agreement", ie; a contract.

On 7/13/05, Glenn Maynard <glenn@zewt.org> 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:

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.

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.

- Michael

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