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legal question regarding using content

Posted on 2004-10-24
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Last Modified: 2010-04-27


hi,

I would assume that if i developed some kind of movie player, which downloaded and
played commercial movies from say acme hollywood . com , this would be considered
piracy, even more so if i charged people a fee to watch these movies.

e.g i find a movie in a folder at http;/www.netflix.com/movies/gone_with_the_wind.avi

and propogate this link to all the clients of my movie player, so that the movie
automatically plays when a user clicks the 'play feature movie' button for example...

is this is a correct statement ?
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Question by:apakian
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6 Comments
 
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Expert Comment

by:humeniuk
ID: 12395262
It would probably be considered a form of theft, whether it was strictly piracy or not.  Your scenario touches on an interesting grey area.  First an overview: presumably, netflix would have a specific licensing agreement to use the film.  If they left the film in an unprotected, public directory, they would be liable if it were taken and used improperly, just as a theater owner would be if they left a copy of a film print on the sidewalk and someone walked away with it.  Of course, the person who took it would also be liable, however they would be in significantly more trouble if they broke into the theater/hacked into the website to take it.  In either case, if the 'thief' then screens the print commercially, they would potentially incur additional charges similar to those that would stem from renting a video/dvd legally and then screening it commercially (in such a case, the license agreement you enter into when you rent a video/dvd does not allow commercial or even public screenings; likewise, if you don't have those exhibition/distribution rights with a legally rented movie, you certainly don't have them with a stolen one).

The reason this is a grey area is because typically it is the supplier of the unlicensed work that is prosecuted - Napster being the most obvious example.  In the post-Napster era, some have circumvented liability by acting merely as a medium for people to trade data, while not assisting or condoning the sharing of copyrighted material.  Kazaa is an example of this, but as I mentioned in another thread, this probably has as much to do with the fact that they intentionally located off shore to make themselves a difficult target for litigation.  The media companies are clearly picking the battles they can win (like suing college students sharing MP3s).  A case that shows the flip side of this is 321 Studios Inc. who were successfully sued simply for distributing software that could break DVD encryption when any rational interpretation of the law suggests that it is the individual who uses the tool for an illegal purpose that should be liable.  Of course, 321 Studios is an American company, so they are in a jurisdiction where U.S. legal decisions are actually enforcable.  In Canada, where I am located, their product remains on the shelves primarily because the motion picture industry doesn't think they can win a similar lawsuit in the Canadian courts (where judges have ruled that the recording industry has no case against individuals who share mp3s via Kazaa and other file sharing services).

The dark cloud on the horizon for you is the Inducing Infringement of Copyrights Act, aka the Induce Act (see 'Copyright Bill to Kill Tech?' - www.wired.com/news/politics/0,1283,64297,00.html and 'Techies Blast Induce Act
' - www.wired.com/news/politics/0,1283,64315,00.html if you're not familiar with it), an Orwellian bit of legislation courtesy of Orrin Hatch that would hold a person or company liable that "intentionally induces" a person to infringe copyright.  I have no doubt that MPAA lawyers would argue that your scenario falls into this category.
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Author Comment

by:apakian
ID: 12395301

what is i put to you this way.

I wish to sue microsoft and google, because google indexed a video on my web server, which
in turn gave users the ability to watch using internet explorer and media player.

how would my media player differ from google or IE, am i not simply a browser for video ?

surely microsoft can not be held liable if a user watched a copyright movie with their technology.

this also leads me to another question i posted regarding GPL:  media player or winamp etc,
play video encoded with GPL'ed codecs, yet do not make their applications source code avaialble ?
If their defense is , they access the codec via VFW, then ok, why isn't VFW required to go
open source... ( this point is not important now ),,




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Author Comment

by:apakian
ID: 12395306
sorry, the first line of the above is:

what 'if' i put 'it' to you this way..

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LVL 33

Accepted Solution

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humeniuk earned 1120 total points
ID: 12395362
You've put your finger on the main problem with this legislation.  To some degree this legislation is intended to address the fact that litigation has failed in some places, such as "the case in April 2003 involving the Grokster file-sharing program, in which the judge ruled that peer-to-peer services were not liable for their users' illegal behavior" by "applying the landmark Betamax case -- which ruled home recorders are legal as long as they are used primarily for legal purposes, or "non-infringing" uses of modern technology -- to peer-to-peer networks" (from Wired).  The legislation is clearly intended to supercede these hurdles.  However, it is sufficiently far-reaching (intrusive, I would say) that it technically allows for lawsuits against Microsoft, Google, etc. under exactly the kinds of circumstances you're talking about.  A number of these companies that initially supported this legislation have changed their tunes, as a result.  You said, "surely microsoft can not be held liable if a user watched a copyright movie with their technology".  Orrin Hatch says they wouldn't be (although he never said they couldn't be, even when asked), but when Microsoft lawyers read the draft of the bill (www.eff.org/IP/induce/20040927_INDUCE_draft.pdf), they became very uncomfortable.

You can find a lot of good info about Induce (and others, ie. the Digital Millennium Copyright Act) at the Electronic Frontier Foundation website (www.eff.org).  If you look at their Intellectual Property page (www.eff.org/IP/), you can see how prominent Induce is.
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Author Comment

by:apakian
ID: 12395498

i've been looking for this for ages, excellent, thankyou..


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LVL 33

Expert Comment

by:humeniuk
ID: 12395549
Glad to be able to help out.
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