Wednesday, July 1, 2009

RIAA's take on decision: good precedent on volitional conduct, Sony-Betamax, and litigation misconduct

On the RIAA's Music Notes blog, litigation chief Jennifer Pariser sketches out three points of particular legal significance from yesterday's opinion granting summary judgment against
First, the court found direct infringement of the distribution right. Translation: In order to find direct liability he had to rule that the “volitional conduct” standard set by the Second Circuit in the recent Cablevision case was satisfied. (In Cablevision, the Second Circuit held that Cablevision was not liable for direct copyright infringement because it lacked the volitional conduct necessary to establish liability and merely acted as a “passive conduit” for delivery of copyrighted works to its users.) Judge Baer found that this test was satisfied because took active steps and routinely exercised control over its servers to facilitate users’ ability to obtain copyrighted music files. Notably, this decision will substantially limit the ability of services who attempt to shield themselves under the guise of being a “passive conduit” to profit from the unauthorized distribution of copyrighted content.

Additionally Judge Baer found liable for secondary copyright infringement (contributory and vicarious liability), holding that the Sony Betamax case didn’t apply where the defendant has an ongoing relationship with the user of the service. This too will substantially aid in our ability to enforce our rights against services engaged in copyright theft.

Finally, Judge Baer ruled that could not make use of the safe harbor afforded by the DMCA because it had willfully destroyed relevant evidence. This clearly reaffirms the fact that courts do not take kindly to defendants destroying incriminating materials in an attempt to cover up the facts and shield themselves from liability.
(links added by me). Next up: the magistrate judge will decide the appropriate remedies, which will likely include an injunction and a significant award of money damages.

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