[WikiEN-l] Seriously, on BJAODN

[Anthony]

On 6/4/07, Ray Saintonge <saintonge at telus.net> wrote:
>
> Anthony wrote:
>
> >On 6/3/07, Ray Saintonge <saintonge at telus.net> wrote:
> >
> >
> >>Anthony wrote:
> >>
> >>
> >>>On 6/3/07, Anthony <wikimail at inbox.org> wrote:
> >>>
> >>>
> >>>>in the case where you know about the file, you're still liable for
> >>>>contributory infringement.
> >>>>
> >>>>
> >>>Before someone takes *that* the wrong way, I'm talking about the person
> who
> >>>
> >>>
> >>>runs the server and knows about the file, not *everyone* who knows
> about the
> >>>
> >>>
> >>>file.
> >>>
> >>>
> >>It's a matter of knowing about the infringement; not just knowing about
> >>the file.
> >>
> >>
> >Specifically, it requires "knowledge of the infringing activity", which
> >seems to me to be different from "knowledge that the activity is
> >infringing".  But now we're getting way beyond my initial statement, and
> >into the realm of hypotheticals which are far too poorly defined.  If you
> >can find some material on exactly what constitutes "knowledge" for the
> >purposes of contributory copyright infringement, I would be interested in
> >it, though.
> >
> How can you possibly have knowledge of infringing activity when you
> don't know that the material is infringing?  The former is necessarily a
> precondition of the latter.


I don't understand the question.  If you know about the activity, but aren't
sure if it's infringing, then you have knowledge of the infringing activity
but don't know that the material is infringing.  I'm kind of just restating
the question though, so I'm not sure if I've explained myself.

I can easily admit that many of the terms
> are poorly defined, but in poorly defined laws the benefit of the doubt
> should go to the defendant.


I'd be happy to see any precedents in the matter.  Until then I can only
speculate.

A good place to start for understanding what constitutes knowledge of
> infringement is the list of things that must appear in a takedown
> order.


I'm not talking about the DMCA, though.

For contributory infringements it may be sufficient to show that
> theres has already been a case filed against the original infringer.
> There are no doubt other criteria, but they would need to be based on
> solid evidence, and not on shaky presumptioins..  Knowledge also needs
> to make allowance for plausible defences, including fair use, the merger
> principle, and waiver of rights.


Are you talking here about the standard under the DMCA (OCILLA), or the
standard for contributory copyright infringement?  Again, two completely
different things.  Like I said, we're probably getting way too hypothetical
and not properly defining situations here.

Anthony