Can ISPs be Held Guilty of Contributory Copyright Infringement for Linking to Bootleg Movies?

Recently, in a case relating to copied textbooks supplied by a student society, the Israel Supreme Court recognized, i.e. legislated by case-law, the doctrine of contributory copyright infringement. In my posting on that decision, See https://blog.ipfactor.co.il/2011/07/04/contributory-copyright-infringement-in-israel/ I predicted that the ruling would have ramifications for Internet service providers, and the predicted ruling has not been long coming.

The Association for Protecting Cinematographic Creations (1993) which represents 20th Century Fox, Disney, Warner, Paramount, Dream Works et al. sued Rotternet Ltd. claiming that forums on Rotter.net provided links to movies that were copyright protected, thereby aiding and abetting their downloading.

Rotternet argued that “everyone does it” and that they removed any link or infringing copy if specifically asked to by the rights owner, but were under no obligation to police their sites.

The complainants argued that the removal on request provision was only effective against innocent acts of infringement but totally ineffective against wholesale intentional actions.

Judge Ofer Grosskopf noted that although there had been some Knesset bills relating to the culpability or otherwise of ISPs, these were never passed by the legislature and thus the issue remains open to judicial ruling, and he has a duty to rule on it. In a well-reasoned argument, he has dismissed the charges and ruled that supporting and displaying lists of links to movies was not in and of itself a culpable act of infringement and that so long as the internet service provider (ISP) had a ‘remove if requested to’ policy, they were not culpable for acts of infringement resulting from such links, so long as the sites were not dedicated to making pirate films available.

Movies are copyright protected for 70 years. Making movies available for downloading without the rights holder’s permission is copyright infringement. The movie must be hosted before it can be linked to. However, since films can be uploaded and stored anywhere, it is the internet service providers (ISPs) which link to the pirate films that provide a more effective target to sue to prevent such linking and thereby to minimize downloading. Despite enabling infringement by facilitating downloading, the linking to pirate films is not infringement per se. and the ISP is not responsible.

The wounded parties can request individual links to be removed and can attack the sites hosting the films. They can also take action against those uploading pirate videos. The service providers are, however, not legally responsible.

The decision relates to the relevant Israeli case-law and the big cases abroad, such as Perfect 10 vs. Google, etc.

Notably, at the beginning of the ruling there seems to be an implication that the act of downloading pirate movies is infringing. Towards the end of the reading it appears that Judge Grosskopf’s position on this issue has changed and downloading without making a copy, i.e. streaming and watching directly is not infringing.

Grosskopf congratulated Rotternet on providing a spirited defense in this matter, which involves other internet service providers and is an important matter of principle and awarded them NIS 50,000 in costs.

T.A. 567-08-09 A. L. I. S. – the Association for Protecting Cinematographic Creations (1993) vs. Rotter.net Ltd. by Judge Ofer Grosskopf, 8 August 2011.

COMMENTS

An interesting defense that is clearly not a legal defence but nevertheless cannot be rejected out of hand, is that “everybody else does it”. There are also some other statements in the ruling that appear correct, if largely irrelevant to the issue. For example, creating a link is not creating a work of literature that is copyright protectable.

This ruling may have international ramifications as the US is demanding that Israel does make ISPs culpable. This, together with Israel’s position on patent term extensions are the main reasons for Israel appearing in the Watch List of the Special 301 Report.

One issue of interest is that Rotternet provides internet forums for the ‘religious’, i.e. halakhically observant community. If linking to movies is not copyright infringement but nevertheless enables the free dissemination of movies without compensating the rights holders and is thus morally reprehensible, shouldn’t the self-described religious strive for higher than minimum standards?   Perhaps rotter is a good name…

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