TVShack and the expanding reach of criminal copyright law

This post has been updated and corrected, as indicated below.

The entertainment industry may not adapt swiftly to the technology people use to acquire and enjoy media, but its lawyers certainly do. It took the music industry a matter of weeks to sue Napster, the pioneering online file-sharing site. And since then, each successive iteration of mass-scale infringement has drawn lawsuits, from distributed file-sharing platforms such as Kazaa to newsgroup indexes such as Newzbin to Bit Torrent sites such as the Pirate Bay and to online locker services such as RapidShare.

Federal enforcers are not so nimble, but they’ve been gradually expanding their efforts from direct infringers to enablers. The latter group would include online locker and file-sharing service Megaupload (although the indictment includes allegations of direct infringement), Bit Torrent index sites and sites that point users to unauthorized streams of copyrighted videos. The New York Times sunk its teeth into one of the latter in Friday’s paper, a site called TVShack that allegedly was operated by a young Brit named Richard O’Dwyer. England has agreed to extradite O’Dwyer to face trial in the United States, but he is appealing the government’s decision.

As with Megaupload, the TVShack case seems to push the boundaries of copyright law, particularly the application of criminal statutes to indirect infringers. That’s not to excuse O’Dwyer’s actions. It’s just to suggest that prosecutors may be going further than Congress intended them to go.

The Times’ story offered two defenses for O’Dwyer. One was that U.S. entertainment companies had failed to make their movies and TV shows easily available online. That’s not much of an excuse; it’s akin to arguing that it’s OK to steal products that you can’t find in local stores.

The other was that TVShack, despite its name, didn’t contain any TV or movie files. It just offered links to them. From the Times’ story:

“Mr. O’Dwyer’s backers say his site was effectively a search engine. To prosecute him, they argue, would set a dangerous precedent -- tantamount to holding one person accountable for the acts of another.

“‘Something that lets you find illegal content can also help you find legal content,’ said Mitch Stoltz, a lawyer with the Electronic Frontier Foundation. ‘When you go after intermediaries, you’re going to shut down legal and legitimate speech and commerce and innovation to get at what they perceive as illegal copyright violation.’ ”

That was the same issue raised by the second-generation file-sharing networks when they were sued by the major record companies and Hollywood studios. Unlike Napster, the companies behind the Kazaa, Morpheus and Grokster software didn’t create indexes on servers operated by those companies. Instead, it created indexes on selected users’ computers. And a (very small) portion of those files could be shared legally.

After lower courts found that these companies had not violated the entertainment industry’s copyrights, the Supreme Court -- troubled by the idea that businesses clearly created to capitalize on online piracy could somehow be legal -- came up with a new standard for liability. Under the Grokster ruling, a website or service could be found liable for its users’ infringements if it actively induced people to violate copyrights. The justices left it up to the lower courts to decide what constituted inducement, describing it mainly as a “clear expression or other affirmative steps taken to foster infringement.”

That ruling came in the context of a lawsuit, however, not a criminal case. The problem for prosecutors in O’Dwyer’s case is that it’s not clear that any form of indirect infringement can rise to the level of a federal crime. The copyright industries have tried several times to persuade Congress to explicitly outlaw secondary infringement, most recently through PIPA and SOPA, but lawmakers have not done so. (Similarly, Hollywood has tried to persuade Congress to make unauthorized streaming a felony, but that bill hasn’t become law either.)

The complaint and virtually all other court documents in O’Dwyer’s case have been sealed, so it’s not clear what rationale federal prosecutors in New York are using. In addition to two counts of criminal copyright infringement, O’Dwyer is charged with one count of conspiracy to infringe a copyright. The latter count appears to be the one providing the bridge between the indirect infringements allegedly committed by O’Dwyer’s TVShack and the direct infringements (by TVShack’s users) required under criminal copyright law.

[Updated, 4:41 p.m. July 16: Ben Sheffner of the Motion Picture Assn. of America alerted me to the fact that the documents were unsealed some time ago, although they remain hard to find online. I’ve uploaded a copy of the complaint and an affadavit, both of which are worth reading.

One key point: The conspiracy count alleges that O’Dwyer had two unnamed helpers in the United States who supported the TVShack site. Another key point: The complaint accuses O’Dwyer of committing criminal copyright infringement by “making available ... for first-run and other movies for streaming from a publicly accessible website.” But as the complaint goes on to note, none of those files were on TVShack’s servers. Instead, TVShack provided links to files being served by online locker sites, such as DivxDen.com and Videoweed.com.

The complaint lays out evidence of that O’Dwyer knew his site was linking to infringing files and that he encouraged people to add links to pirated works. In short, it’s the sort of case that the Motion Picture Assn. of America has brought against linking sites when seeking pulverizing amounts of civil damages -- but not the kind of case prosecutors have brought against warez groups and other allegedly criminal infringers.]

If the feds bring criminal prosecutions against indirect infringers, will the courts import the Supreme Court’s reasoning in MGM vs. Grokster as to what constitutes an inducement? If so, a search engine that’s designed to help people find any kind of video online would seem to be safe under the Grokster standard, but one that’s tuned to finding television and movie files or streams with no copy protection might have something to worry about.

O’Dwyer’s defenders might argue that some independent film and video artists distribute their works for free online, and it’s impossible to build a search engine that indexes those items but not the unauthorized copies of Hollywood movies and TV series. That’s a good argument for a search engine that doesn’t favor one type of video file over another. Sites such as the Pirate Bay, however, attract people looking for pirated content because they make it easier to find copies of a popular film or hit TV show than a self-distributed indie movie. Such fine-tuning may satisfy the Grokster ruling’s requirement of “purposeful, culpable expression and conduct.”

That’s all speculation, of course. And O’Dwyer may not be first in line to clarify whether criminal copyright statutes apply to indirect infringers. That privilege, such as it is, may go to Megaupload’s Kim Dotcom, who is contesting his extradition from his current homeland, New Zealand.

Meanwhile, Wikipedia founder Jimmy Wales has launched a petition drive opposing O’Dwyer’s extradition. Wales argued in an op-ed last month that O’Dwyer’s site linked to authorized as well as unauthorized videos, and that he removed links to copyrighted content upon request -- one of the requirements that U.S. law sets for a legal safe harbor. Wales also contended that linking isn’t illegal under the laws of England, where O’Dwyer was based. Unfortunately for O’Dwyer, his site relied on U.S.-based Internet domains for most of its existence (until the Department of Homeland Security seized them two years ago), giving the feds a jurisdictional hook for their case.

[For the Record, 4:21 p.m. July 16: The original version misstated how the original Napster, Kazaa, Morpheus and Grokster functioned, saying Napster copied files onto its servers and the other three created indexes to those files on their servers. Napster’s servers provided only an index to the files on users’ computers, and the other three companies’ software created indexes to users’ files on selected users’ PCs. The original version also stated that Hollywood has tried to persuade Congress to make unauthorized streaming a crime. It is already a crime -- a misdemeanor -- but the bill backed by the studios would make streaming a federal felony. Thanks muchly to reader “ChrisHarshman” and Ben Sheffner of the Motion Picture Assn. of America for pointing out those errors.]

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