Wikilegal/Linking Legal Considerations

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Wikimedia Projects are online, collaborative projects to which any user can contribute. In theory, a user violating the terms of use could post a hyperlink on a Project that links to a third-party website that features copyright-infringing materials. Because the Projects could act as a conduit for the posting of such links, copyright liability that can arise from hyperlinking is a concern for both the community and the Wikimedia Foundation.

Introduction: Background on the DMCA Safe Harbor Provision[edit]

The Digital Millennium Copyright Act (DMCA) of 1998 includes a “safe harbor provision” that offers online service providers a limited shield[1] from copyright liability provided they abide by certain requirements. The DMCA provides that a service provider shall not be held liable for monetary relief “for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity.”[2] However, in order for this shield to apply:

  • the service provider must not know that the material is infringing;[3]
  • it must not be aware of facts that would make the infringement apparent;[4]
  • it must, upon learning such facts, act expeditiously to remove or disable access to the infringing material;[5]
  • it must not receive a financial benefit directly attributable to the infringing activity; and [6]
  • it must terminate repeat infringers.[7]

The DMCA’s safe harbor provision is a shield for service providers, intended to enable Internet businesses to operate without excessive exposure to copyright liability. It does not protect the users of online services who infringe copyrights in their individual capacity (by, say, personally uploading a copyrighted video without authorization). Though copyright holders often disfavor proceeding against individual infringers,[8] such lawsuits are brought and can be financially ruinous for defendants. In this regard, it is critical for anyone posting content on the Internet to keep apprised of which practices are tolerated in their jurisdiction, and which have been deemed actionable.

User Liability in the U.S. for Posting Links to Third-Party Infringing Sites[edit]

While there are some acts that clearly constitute copyright infringement (such as the unauthorized copying and sale of copyrighted works), there is some ambiguity over whether certain activities amount to infringement, namely the posting of links to sites that host infringing content and the “embedding” of infringing content. This section will address the issue of user liability for posting links to copyrighted content. It will consider the exemptions that may apply in cases of innocent infringement, and survey domestic and international case law addressing the civil and criminal liability of individual infringers.

Innocent Infringement[edit]

The United States federal copyright statute accords copyright holders exclusive rights to reproduce, distribute, perform, display, and make derivatives of their works. [9] As the statute is written, performance of any of these actions by an unauthorized third party amounts to infringement (unless covered by an exception to infringement), regardless of whether the act was done knowingly or performed intentionally. However, it is important to read the copyright statute in the context of the time when it was written (its last major revision was in 1976), when it would have been virtually inconceivable to infringe another’s copyrights unintentionally.[10]

Modern technology has required courts to take a more critical approach when determining the actionability of an involuntary act of copyright infringement. For instance, whenever you visit a web page that features copyrighted content, your computer automatically copies the content into your computer’s random-access memory (RAM). Under a straightforward application of the 1976 Copyright Act, this alone is sufficient to constitute copyright infringement.[11] Today, it is understood that some “copying” is incidental to the use of modern technology, and should not be considered to amount to a tort absent some element of volition.[12]

Civil Liability[edit]

Cases in which users have been found liable for the unauthorized copying or distribution of copyrighted works (also known as "direct infringement") are abounding.[13] However, we have not found any United States cases wherein a user has been found personally liable for posting links to an infringing site. But it is worth noting that a site or user who posts a link with the intent and purpose of directing others to engage in infringement does risk liability for contributory infringement. For example, a site or user that provides URLs to other sites that host infringing material could be liable for contributory infringement if the site or user also encourages other users to access the copyrighted material and posts additional information on how to obtain it.[14][15][16] If a website merely announces that groups are releasing infringing material, and the site does not itself contain any links to infringing material or exhortations to piracy, the danger of incurring secondary liability merely for linking to that website is arguably lower, but that risk is not eliminated.[17]

Of course, in order for a third-party intermediary to be held contributorily liable, there must be a direct infringement.[18] In other words, even if an intermediary encourages and offers to assist in unauthorized access to copyrighted works, if no one actually makes use of that assistance to perform an act of copyright infringement, no liability can issue.

The recent case of Flava Works, Inc. v. Gunter has finally addressed the issue of linking liability directly, tackling the specific circumstance of video-embedding.[19] Video-embedding is a form of linking that takes the appearance of actual content hosting, but instead of hosting the content directly, the videos are hosted remotely and presented through the website where they have been embedded.”[20] This complicates the elements of a claim for copyright infringement, because:

“…as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner's exclusive right, conferred by the Copyright Act, ‘to reproduce the copyrighted work in copies’ and ‘distribute copies ... of the copyrighted work to the public.’ 17 U.S.C. § 106(1), (3). His bypassing Flava's pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava's copyrighted video by uploading it to the Internet.”[21]

The court held that myVidster (the defendant in the case) would had to have contributed to the acts of the third parties who uploaded Flava Works’ videos to the Internet in order to be contributorily liable.[22] Because Flava Works had not demonstrated that myVidster contributed to the acts of these third parties, the Seventh Circuit vacated the preliminary injunction Flava Works had obtained.[23]

Even though the defendant in Flava Works was a service provider, and not the individual service-user responsible for embedding the Flava Works videos on the myVidster website, the court’s ruling turned upon the determination that the service-users’ acts of embedding videos (a form of hyperlinking) did not constitute an act of copyright infringement per se. [24]

Criminal Liability[edit]

U.S. copyright law provides for criminal penalties for copyright infringement in limited circumstances.[25] We could not find any case law directly addressing the issue of criminal liability being imposed in the U.S. for user-posted links to sites containing infringing works, but the general requirements for criminal liability do provide some guidance.

To start with, criminal copyright infringement requires proving all of the elements of civil copyright infringement.[26]

Furthermore, criminal copyright infringement requires a willful act of infringement.[27] What is and isn’t willful copyright infringement is not clearly defined, and courts have come to widely differing interpretations. The statute does at least stipulate that, “for purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.”[28]

To shed some light on the issue, a look at how courts handle willfulness in other contexts is useful. The Supreme Court, in considering the willfulness requirement for criminal violations of the tax code, held that “the standard for the statutory willfulness requirement is the voluntary, intentional violation of a known legal duty.”[29] Some circuit courts have applied a similar standard in criminal copyright cases.[30] Perhaps most tellingly, courts interpreting the willfulness requirement for enhanced statutory damages for civil infringement have consistently held that willfulness requires that the defendant act with knowledge that her conduct constitutes copyright infringement.[31][32]

There is the additional question of whether the theories of contributory liability used in civil copyright actions to hold people who link to infringing material liable could be applied to a criminal case. Contributory liability for copyright infringement exists because judges created it in civil infringement cases; it is not based on any statute.[33] We could not find any cases discussing the theory of contributory liability for copyright infringement laid out by the Supreme Court in a criminal context. One case that might have resolved the issue, U.S. v. Puerto 80 Projects, S.L.U., was dropped following the outcome of Flava Works v. Gunter. Given this uncertainty, it remains to be seen whether the courts will impose criminal liability for defendants who themselves do not commit or conspire to commit any infringing acts.[34]

Online Service Provider Liability in the U.S. for User-Posted Links to Third-Party Infringing Sites[edit]

Cases like Netcom demonstrated the need for addressing the liability of companies that permit third parties to post and access infringing content on their servers.[35] The DMCA, discussed in the introduction, was introduced in 1998 to smooth the way for online service providers to operate without being exposed to excessive liability. The DMCA’s safe harbor provision shields online service providers from the liability incurred by users of their sites provided that certain criteria are abided, but it is not an absolute shield. Companies like Napster, Aimster, and Grokster have all been found liable for their role in encouraging and enabling copyright infringement on behalf of the services’ users.[36] This section will address the state of law regarding potential secondary civil and criminal liability that online service providers may be subject to for permitting users to post links to sites hosting copyright-infringing content.

Civil Liability[edit]

The Supreme Court’s most recent pronouncement on vicarious and contributory liability for copyright infringement was in the case of MGM v. Grokster. Consistent with precedent set by the “Betamax decision”,[37] the Court held that “[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.”[38] Therefore, the critical criteria for establishing the secondary liability of an online service provider remain “intentional inducement” under a theory of contributory liability, and “profit” under a theory of vicarious liability.

The most apposite source of authority regarding the liability of online service providers for links to infringing content posted by the service’s users is the aforementioned case, Flava Works, Inc. v. Gunter. Critically, the case held that the act of posting a link to a bootleg video is not copyright infringement, because it neither constitutes an act of copying or public performance of the copyrighted work.[39] The activity was harmful to Flava Works, but was more analogous to helping someone sneak into a movie theater than to piracy.[40] The infringing activity taking place, conversely, is the uploading of the bootleg videos that myVidster’s users were linking to.[41] Flava Works would have had to show that myVidster was contributing to that activity in order to hold it contributorily liable for copyright infringement.[42]

Criminal Liability[edit]

Theories of secondary liability present generally in criminal law, such as conspiracy and aiding and abetting, could also potentially ensnare people who link to infringing material. Although we could not find any cases applying these doctrines to criminal copyright actions, the U.S. government has brought charges against various parties for conspiracy to commit criminal copyright infringement.[43] How these charges will fare in court remains to be seen.

Online Service Provider Liability Elsewhere for User-Posted Links to Third-Party Infringing Sites[edit]

Recent cases out of the UK[44] and the Netherlands,[45] and a new regulation enacted in Spain,[46] have highlighted the potential for hyperlink liability in foreign jurisdictions.

The Surfthechannel.com Case[edit]

In August of 2012, Anton Vickerman, creator of the website Surfthechannel.com, was sentenced to four years imprisonment for his role in hosting links to copyright-infringing videos. Vickerman did not face charges for copyright infringement, but was found guilty of conspiracy to defraud, an offense that criminalizes any agreement between two or more persons to injure or deprive the proprietary rights of another. [47] Judge John Evans, of the Newcastle upon Tyne Crown Court, convicted Vickerman upon finding that Surfthechannel.com enabled the public to view copyrighted films and television programs free of charge, in violation of the rights of the owners of those works.[48]

The outcome in the Vickerman trial appears to have been greatly influenced by the wealth of evidence pointing to bad faith and malice.[49] The court emphasized that the industry was suffering terrible losses directly traceable to Vickerman’s activity.[50] It also noted that Vickerman was realizing great profits.[51] Further, the court found that Vickerman was knowingly and intentionally inducing the infringement of works copyrighted globally.[52] In this regard, the court’s basis for imposing liability closely mirrors the factors for imposing vicarious or contributory liability under United States law.[53]

The GeenStijl.nl Case[edit]

In 2012, the Dutch website GeenStijl.nl was held liable under the Dutch Copyright Act for posting a hyperlink to copyrighted photographs of Britt Dekker’s Playboy shoot.[54] The court considered GeenStijl.nl’s posting of the hyperlink an unauthorized “new publication” under a three-prong test, which requires: 1) an intervention, 2) a new audience, and 3) a profit.[55] The lower court’s holding was overturned by the Dutch Court of Appeal in November, 2013, on the grounds that the posting of a hyperlink does not constitute an act of copyright infringement, but can be a tort.[56]

In the lower court’s opinion, GeenStijl.nl’s actions were considered an intervention because their posting of the hyperlink provided previously unavailable public access to the pictures. [57] The court further found that GeenStijl.nl released the copyrighted material to a “new” audience, as there was no audience for the unreleased material before their publication.[58] It additionally concluded that GeenStijl.nl profited from the publishing of the URL because they were able to attract more visitors to their site.[59] GeenStijl.nl was consequently fined €28,400 ($36,000) for their publication of the hyperlinks to the copyrighted photos.[60]

On appeal, the Dutch Court of Appeal held that the publishing of the hyperlink did not constitute an act of new publication unless the files hosted on the third-party cloud service where they were stored were “completely private,” which Playboy, the plaintiff, could not prove.[61] Regardless, the court held that GeenStijl.nl published the photos despite knowing it to be unlawful, and found that no public interest was served by the publication.[62] For this reason, the publication constituted a tort against Playboy, and GeenStijl.nl was found liable to pay damages.[63]

Spanish Linking Regulation[edit]

In September, Spain enacted a regulation that imposes a jail sentence of up to six years for anyone making a direct or indirect profit from linking to copyrighted content that has been uploaded illegally.[64] The Reuters article indicates that users of such link-hosting sites will not face punishment under this regulation, only those trying to make money from the service, and notes that peer-to-peer sites and search engines are exempted.[65]

Prior to this law's enactment, the Spanish courts had held, similarly to the US, UK, and the Netherlands, that linking to bootleg content is not an act of copyright infringement.[66] The decision of the Court of Appeals of Barcelona[67] holds that the posting of a hyperlink merely makes content available, which “‘does not constitute distribution, nor reproduction nor public communication,’ under Spanish law.”[68]

Conclusion[edit]

The concordant conclusions of the courts of four nations, holding that the posting of hyperlinks to bootleg content does not itself constitute an act of copyright infringement, offers persuasive evidence that other nations with copyright frameworks tied to the Berne Convention and TRIPs Agreement will follow suit.[69] However, as the cases from the UK and Holland and the new regulation from Spain demonstrate, we can expect courts to look to para-copyright laws or other theories for imposing liability under tort law rather than condone activity that is demonstrated to play a role in the circumvention of payment for access to copyrighted content.


References[edit]

  1. The DMCA’s safe harbor provision shields online service providers from both direct and contributory infringement (Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1175 (9th Cir. 2007), citing Napster, 239 F.3d at 1025, available at https://www.eff.org/files/filenode/Perfect10vGoogle9thCir12-2007.pdf), and is a complete shield to liability for monetary damages, but it does not shield service providers from all types of injunctive relief. See 17 U.S.C. § 512(j)(1)(A).
  2. 17 U.S.C. § 512(d).
  3. 17 U.S.C. § 512(d)(1)(A).
  4. 17 U.S.C. § 512(d)(1)(B).
  5. 17 U.S.C. § 512(d)(1)(C).
  6. 17 U.S.C. § 512(d)(1)(C)(2).
  7. 17 U.S.C. § 512(I)(1)(A).
  8. “Chasing individual consumers is time consuming and is a teaspoon solution to an ocean problem.” Randal C. Picker, ‘Copyright as Entry Policy: The Case of Digital Distribution,’ 47 Antitrust Bull. 423, 442 (2002).
  9. 17 U.S.C. § 106.
  10. Not unintentionally in the sense of a lack of desire to violate another’s rights, but unintentionally in the sense of unwittingly copying another’s work. For more information on intentionality and copyright liability, see R. Anthony Reese, Innocent Infringement in U.S. Copyright Law: A History, available at: http://www.law.uci.edu/faculty/full-time/reese/reese_innocent_infringement.pdf.
  11. Indeed, when the issue of RAM capture was first addressed by the courts, it was found to amount to infringement. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993), available at http://www.law.cornell.edu/copyright/cases/991_F2d_511.htm (“’copying’ for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM”). This analysis was then refined in the case of Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 130 (2d Cir. 2008), available at http://cyber.law.harvard.edu/people/tfisher/IP/2008%20Cartoon%20Abridged.pdf (“Given that the data reside in no buffer for more than 1.2 seconds before being automatically overwritten, and in the absence of compelling arguments to the contrary, we believe that the copyrighted works here are not “embodied” in the buffers for a period of more than transitory duration, and are therefore not “fixed” in the buffers. Accordingly, the acts of buffering in the operation of the RS–DVR do not create copies, as the Copyright Act defines that term.”).
  12. See Relig. Tech. Ctr. v. Netcom On-Line Commun. Services, Inc., 907 F. Supp. 1361, 1370 (N.D. Cal. 1995), available at http://www.law.cornell.edu/copyright/cases/907_FSupp_1361.htm (declining to impose direct liability on an online service provider with respect to content that was posted on its service by one of its customers on the basis that “although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party.”). It is important to note that this case was decided before the DMCA was enacted, hence there was no safe harbor that the online service provider could have relied upon to shield itself from liability for the acts of its users.
  13. See, e.g., Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. 2012) cert. denied, 133 S. Ct. 1584 (U.S. 2013), available at https://www.eff.org/document/thomas-rasset-8th-circuit-opinion (ultimately holding a Kazaa user liable for $222,000 in damages for making 24 sound recordings available for download); see also Sony BMG Music Entm't. v. Tenenbaum, 719 F.3d 67 (1st Cir. 2013), available at http://media.ca1.uscourts.gov/pdf.opinions/12-2146P-01A.pdf (Defendant was found liable for distributing 30 of plaintiff’s sound recordings over a person-to-person network. The District Court reduced the jury’s award of $22,500 for each work infringed to $2,250 for each work infringed on due process grounds. On appeal, the First Circuit reinstated the jury award.).
  14. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1294 (D. Utah 1999), available at http://cyber.law.harvard.edu/property00/metatags/ULM.html (citing MAI Systems for the proposition that merely creating a copy of text in a computer’s RAM – which occurs when one causes text from a website to appear in their web browser by visiting the site – amounts to copyright infringement).
  15. As noted above, the Second Circuit, in Cartoon Network, interpreted MAI Systems as holding that copying information into a computer’s RAM can result in copying, but only if the copy persists for longer than a “transitory duration.” 536 F.3d 121, 128 (2d Cir. 2008) available at http://cyber.law.harvard.edu/people/tfisher/IP/2008%20Cartoon%20Abridged.pdf. However, RAM copying arguably remains infringement in the Ninth Circuit for the reason that MAI Systems has not been officially overruled.
  16. Similarly, in Arista Records, Inc. v. Mp3Board, Inc. the U.S. District Court for the Southern District of New York held that a site that provides links to copyrighted works could potentially be liable for contributory infringement. 2002 Copr. L. Dec. P 28483, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002). As with Intellectual Reserve, the court did not solely rely on links as the basis for imposing liability. The court pointed to encouragements the site owners had made to users, as well as assistance the site owners gave to users looking for particular songs. Id. at *3. Although these cases do not provide any clear-cut rules, they, along with other cases on secondary liability, indicate that the actions and intent behind linking to infringing material may well matter. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (hereinafter, “MGM”), available at http://www.law.cornell.edu/supct/html/04-480.ZS.html (“One infringes contributorily by intentionally inducing or encouraging direct infringement.” [emphasis added]).
  17. See Benjamin H. Glatstein, Tertiary Copyright Liability, 71 U. Chi. L. Rev. 1605 (2004) (arguing for liability for those that assist contributory infringers, even if they have no contact with the direct infringement).
  18. MGM at 930. See also, Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971), available at http://law.justia.com/cases/federal/appellate-courts/F2/443/1159/246268/ (“[o]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”); UMG Recordings, Inc. v. Bertelsmann AG, 222 F.R.D. 408, 411 (N.D. Cal. 2004) (“Liability under this theory requires substantial participation in a specific act of direct infringement.”).
  19. 689 F.3d 754 (7th Cir. 2012), available at https://www.eff.org/files/filenode/KF1FFP8U.pdf.
  20. Id. at 756.
  21. Id. at 757.
  22. Id. at 762.
  23. Id. at 758.
  24. It is important to note the procedural posture of the Flava Works case. The court in Flava Works was only ruling on the challenge to the issuance of a preliminary injunction. The case should not be taken to stand for the proposition that an online service provider, or individual using an online service, will never be held liable for linking to or embedding third-party bootleg content. Indeed, the court notes that, if myVidster had invited people to bookmark copyrighted videos on its website, it would have been liable for inducing infringement. Since the preliminary injunction was not issued on the ground induced infringement, and because there was no proof that myVidster had made any such invitations, there was no ruling on this issue. Flava Works, Inc. v. Gunter, 689 F.3d 754, 758 (7th Cir. 2012)(citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)). The critical determination was the court's declaration that the act of linking to a site where copyright-infringing content is hosted is not an act of copyright infringement in and of itself.
  25. 17 U.S.C. § 506
  26. U.S. v. Wells, 176 F. Supp. 630 (S.D. Tex 1959), available at http://www.leagle.com/xmlResult.aspx?xmldoc=1959806176FSupp630_1693.xml&docbase=CSLWAR1-1950-1985, see also Kelly v. L.L. Cool J., 145 F.R.D. 32, 39 (S.D.N.Y. 1992) aff'd sub nom. Kelly v. L.L. Cool J, 23 F.3d 398 (2d Cir. 1994) (“In addition, the criminal claims add nothing to the plaintiff's case because conduct that does not support a civil action for infringement cannot constitute criminal conduct.”); Nimmer on Copyright, 15.01[A][2] at 15-4.
  27. 17 U.S.C. § 506(a)(1). See also, Marx. v. U.S., 96 F.2d 204, 207 (9th Cir. 1938), available at http://scholar.google.com/scholar_case?case=13571229904989261890&hl=en&as_sdt=2&as_vis=1&oi=scholarr; Nimmer on Copyright, 15.01[A][2] at 15-6 (“Although innocent intent is generally not a defense in a civil action, the United States government may bring criminal action only for willful infringements.”)
  28. 17 U.S.C. § 506(a)(2)
  29. Cheek v. United States, 498 U.S. 192, 201 (1991), available at http://supreme.justia.com/cases/federal/us/498/192/case.html (quotations omitted)
  30. See United States v. Moran, 757 F. Supp. 1046, 1049 (D. Neb. 1991), available at http://cyber.law.harvard.edu/people/tfisher/IP/1991%20Moran%20Abridged.pdf (discussing cases in the 7th and 9th Circuits using specific intent in defining willfulness and contrasting this with cases in the 2nd and 9th Circuits requiring only an intent to copy).
  31. Cable/Home Communication v. Network Productions, 902 F.2d 829, 851 (11th Cir.1990), available at http://bulk.resource.org/courts.gov/c/F2/902/902.F2d.829.88-5647.89-5081.html; Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th Cir.1988), available at http://bulk.resource.org/courts.gov/c/F2/855/855.F2d.233.87-3831.html; RCA/Ariola Int'l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 779 (8th Cir.1988), available at http://bulk.resource.org/courts.gov/c/F2/845/845.F2d.773.87-5204.87-5195.html; Fitzgerald Publishing Co., Inc. v. Baylor Publishing Co., Inc., 807 F.2d 1110, 1115 (2d Cir.1986), available at http://law.justia.com/cases/federal/appellate-courts/F2/807/1110/311559/. See Moran, 757 F. Supp at 1050 (discussing the willfulness requirement in the civil context); Nimmer on Copyright 14.04[B][3] at 14-77. For cases where a court used the civil interpretation of willful in a criminal case, see United States v. Manzer, 69 F.3d 222, 227 (8th Cir. 1995), available at http://law.justia.com/cases/federal/appellate-courts/F3/69/222/609345/; United States v. Cross, 816 F.2d 297, 303 (7th Cir. 1987), available at http://bulk.resource.org/courts.gov/c/F2/816/816.F2d.297.86-1759.86-1750.86-1749.html (“In order to understand the meaning of criminal copyright infringement it is necessary to resort to the civil law of copyright.”).
  32. Despite the argument for using this standard in the criminal context, there are still cases applying a lower standard for willfulness in the criminal context. See United States v. Backer, 134 F.2d 533, 535 (2d Cir. 1943) (holding that intent to copy qualified as willful). But see United States v. Wise, 550 F.2d 1180, 1194 (9th Cir. 1977), available at http://bulk.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-1141.html (“We agree with appellant that the Government had the burden to prove, in addition to the usual requirement of an act intentionally done in violation of the law, that appellant knew that the film which he sold had not been first sold by the copyright owner.”); United States v. Cross, 816 F.2d 297, 300 (7th Cir. 1987), available at http://bulk.resource.org/courts.gov/c/F2/816/816.F2d.297.86-1759.86-1750.86-1749.html (upholding a jury instruction that stated “(t)he wor[d] ‘willfully’ as used in the statute means the act was committed by a defendant voluntarily, with knowledge that it was prohibited by law, and with the purpose of violating the law, and not by mistake, accident or in good faith.”). See also Brief In Opposition To Petition Seeking Release Of Seized Property at 22, Puerto 80 Projects, S.L.U. v. United States, No. 11-CV-3983 (PAC) (FM) (S.D.N.Y. July 11, 2011), available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2011-07-11-United%20States%20Memorandum%20in%20Opposition.pdf (admitting that the civil standard governs in the 2nd Circuit despite Backer).
  33. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984), available at http://www.law.cornell.edu/copyright/cases/464_US_417.htm (“The Copyright Act does not expressly render anyone liable for infringement committed by another. . . . The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.”).
  34. For a more detailed analysis of the issues inherent in applying a theory of contributory liability to criminal copyright cases, see http://cyberlaw.stanford.edu/blog/2012/01/megaupload-lot-less-guilty-you-think.
  35. Netcom was the first case to impose a requirement of volition in order for a service provider to be held liable for an act of copyright infringement. 907 F. Supp. at 1370.
  36. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), available at http://www.law.cornell.edu/copyright/cases/239_F3d_1004.htm; In re Aimster Copy. Litig., 334 F.3d 643 (7th Cir. 2003), available at http://homepages.law.asu.edu/~dkarjala/cyberlaw/inreaimster(9c6-30-03).htm; Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), available at http://www.law.cornell.edu/supct/html/04-480.ZS.html.
  37. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984)
  38. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 914 (2005)
  39. Flava Works, Inc. v. Gunter, 689 F.3d 754, 762 (7th Cir. 2012).
  40. Id. at 758.
  41. Id.
  42. Id.
  43. For example, in the MegaUpload case, the government alleges that the defendants engaged in conspiracy to commit copyright infringement. For a more thorough analysis of the likelihood of the success of this argument, see http://cyberlaw.stanford.edu/blog/2012/01/megaupload-lot-less-guilty-you-think.
  44. See the 2012 "Surfthechannel.com case," available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/anton-vickerman-sentencing-remarks-14082012.pdf
  45. See the 2013 "GeenStijl.nl case." A summary of the decision: Marjolein van der Helde, “Dutch Court: hyperlinks on website can constitute copyright infringement,” FUTURE OF COPYRIGHT (2012), is available at http://www.futureofcopyright.com/home/blog-post/2012/09/13/dutch-court-hyperlinks-on-website-can-constitute-copyright-infringement.html
  46. For a brief discussion of the new regulation penalizing those trying to profit from linking to bootleg material, see “Spain readies hefty jail terms over internet piracy,” Sep. 20, 2013. Available at http://www.reuters.com/article/2013/09/20/net-us-spain-piracy-idUSBRE98J0RD20130920
  47. See Indictment No. T2009 7188 in the Newcastle upon Tyne Crown Court, at page 1, available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/anton-vickerman-sentencing-remarks-14082012.pdf. This is analogous to the Seventh Circuit’s determination in Flava Works that hyperlinking itself does not constitute an act of copyright infringement, but is no less a malevolent act, damaging to the business of the owners of the works being bootlegged and exploited. 689 F.3d at 758.
  48. See Indictment No. T2009 7188 in the Newcastle upon Tyne Crown Court, at page 1, available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/anton-vickerman-sentencing-remarks-14082012.pdf
  49. Id. at page 2.
  50. Estimating losses between £52 and £198 million. Id. at page 6.
  51. Estimating profits between £10 and £60 thousand per month in advertising revenue. Id.
  52. Surfthechannel.com was hosting links to sites providing free access to brand new films. Id. at page 2.
  53. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), discussed above.
  54. A summary of the decision: Marjolein van der Helde, “Dutch Court: hyperlinks on website can constitute copyright infringement,” FUTURE OF COPYRIGHT (2012), is available at http://www.futureofcopyright.com/home/blog-post/2012/09/13/dutch-court-hyperlinks-on-website-can-constitute-copyright-infringement.html
  55. Id.
  56. A discussion of the Court of Appeals decision: Marjolein van der Heide, “Dutch Court of Appeal: hyperlinks to pirated content is no copyright infringement but can be tort,” FUTURE OF COPYRIGHT (2013), is available at http://www.futureofcopyright.com/home/blog-post/2013/11/21/dutch-court-of-appeal-hyperlinking-is-no-copyright-infringement.html
  57. The pictures were stored on a cloud service that stored and shared files and could not be found through search engines, and access to the unreleased photographs required an exact URL for access, which GeenStijl.nl provided in their article. See “Dutch Court: hyperlinks on website can constitute copyright infringement,” available at http://www.futureofcopyright.com/home/blog-post/2013/11/21/dutch-court-of-appeal-hyperlinking-is-no-copyright-infringement.html.
  58. Id.
  59. The article about the photos was statistically their best-viewed article in 2011. Id.
  60. Id.
  61. “Dutch Court of Appeal: hyperlinks to pirated content is no copyright infringement but can be tort,” available at http://www.futureofcopyright.com/home/blog-post/2013/11/21/dutch-court-of-appeal-hyperlinking-is-no-copyright-infringement.html.
  62. Id.
  63. Id.
  64. For a brief discussion of the new regulation, see “Spain readies hefty jail terms over internet piracy,” Sep. 20, 2013. Available at http://www.reuters.com/article/2013/09/20/net-us-spain-piracy-idUSBRE98J0RD20130920.
  65. Id.
  66. See “Spanish Court Rules That Linking to Potential Copyright Infringing Material Is Not Copyright Infringement,” Aug. 5, 2011. Available at https://www.eff.org/deeplinks/2011/08/spanish-court-rules-linking-potential-copyright.
  67. Available at http://www.filmica.com/david_bravo/archivos/sentencia.pdf.
  68. “Spanish Court Rules That Linking to Potential Copyright Infringing Material Is Not Copyright Infringement,” Aug. 5, 2011, available at https://www.eff.org/deeplinks/2011/08/spanish-court-rules-linking-potential-copyright, quoting the Court of Appeals of Barcelona in Sentencia Num. 301/2011.
  69. The texts of these international agreements and their interpretational guides may be consulted at http://www.wipo.int/treaties/en/.