Okay, so I was reading a bunch of articles that were about copyright infringement lawsuits (including the megaupload one). After reading all of the articles, I realized something, When is a copyright infringement case considered to be a criminal copyright infringement case.....and how is that different from commercial criminal infringement case. I wasn't able to find a real line/threshold that would say "Yo dawg, you're now considered to be charged with criminal or commercial copyright infringement". It seems like this whole copyright infringement thing is just one giant gray area. I also read about the DMCA & OCILLA but since megaupload was taken down and apparently followed these rules/safe harbors (for the most part), you can't really take these laws' word for it and legal trouble could still be possible for site owners that abide the takedown requests. What a mess the internet is becoming! I'd love to hear some opinions or thoughts from people on this matter (mostly because a few of my good friends run 2 sites that could fall into this kind of trouble, and I want to be able to convince them to either sell or change the sites if that's the case).
Would that be considered criminal copyright infringement or commercial copyright infringement? Is this the case even if sites follow DMCA takedown notices?
DMCA takedown notices are primarily to let a third party know that someone else posted something that is protected under copyright. For example, if I post a copyrighted movie on my own site, I can't hide behind a DMCA since I was the one that posted it. DMCA is not a ticket to freely infringe on copyrights until the copyright owner bothers to tell me they don't want me to. DMCAs are more designed to get things taken down when a provider's users infringe. DMCA is also designed for times when the provider doesn't know their users are infringing (like a web hosting company that doesn't look at every site they are hosting). Bottom line, if you own a site and you are infringing yourself, you are liable (regardless of DMCA) OR if it's reasonable to think you as a site owner know your users are infringing within your site, you are also liable without a DMCA.
Thanks! That makes sense. What about the case for sites that provide links to content, for example: http://bit.ly/DViH Where the content is automatically added by either bots or screen-scraping (scraping content off of other websites)? For the site i mentioned above, the owner/operator clearly knows that a majority of the links/results they display would be infringing. I thought that the law doesn't require you to guess whether or not a file/link is infringing or not, hence why dmca notices need to be sent?
It's a grey are and depends on your country's laws. For example, it's why Pirate Bay is still around... they don't infringe themselves, but link to infringing material... but they are also located in Sweden where Swedish law allows it. Could they get in trouble if they were based in the US? Yes, absolutely.
By "they" you mean the owners/operators of tpb? Any US citizen would get owned under the USA's NET Act (No Electronic Theft Act). What about countries who are really good friends with the USA? How does the linking law differ in Canada, UK, and Germany for example? If you're running a website from the UK or Canada and have hosting in a country like Sweden, would the original laws still affect you as a site owner? or does it depend on where the hosting/site is actually located? Yep i did read somewhere that Sweden and Switzerland allow pirating/downloading of pirated material(s), which I find is a very good choice on the governments' end and it should be like that everywhere.
If the owners live in country A and their servers are in country B, they are bound by laws in both country A and country B. If someone is worried about it, they really should be talking to their attorney to get actual legal advice.
I guess that's the best source of advice if your really need it. I just find this whole copyright topic so awesomely interesting because it all boils down to the finest details. If anyone else has any thoughts on this topic, feel free to post! Thanks @digitalpoint for clearing up my confusions! haha
To add to what DP already said... In the US, all criminal prosecutions are at the discretion of a prosecutor (or equivalent official, like US Attorney, etc.). They and they alone can decide to charge or not charge someone with a crime. There is no set of facts that guarantee being charged with a crime. Any injured party can sue for copyright infringement as a civil matter. That action neither mandates or precludes a criminal prosecution.
@browntwn, So you're saying that the copyright laws/safe harbors are basically just a set of guidelines and if you're in the gray zone there's pretty much a chance that things could hit the fan at any time (depending if you get sued, who your prosecutor is, and what mood he or she is in...lol)?? Oh man, that doesn't sound very pleasing from an entrepreneurs point of view
I actually meant the opposite. Even if you are clearly guilty it is the decision of a prosecutor to charge you. They can simply decide that their office has more important cases to spend resources on and do nothing. But your point is correct as well. There is a lot of gray area and some could interpret activity as being wrongful and others think it is legal. As far as being criminally prosecuted it will depend on what it is thinking of a prosecutor.
If your business revolves around copyright infringement (or anything else that is technically illegal), it's probably a good idea to think about a new business.