buyer of illegally copied material?

[theleela]

Thanks for the reassurances.

I have some light in where this is going, as I just heard back from the company guy, who said that they're looking for the original seller but also any buyers who might turn into a future seller since this is a pdf. Buyers will be mostly just witnesses and he told me he doesn't think I'll need for a lawyer because the ebay description didn't say he was selling pdf versions of hte books (however, I believe the seller did tell all the buyers through email before officially giving out the download links that it was the pdf...). Although this is a small company, which is why I agree that they might not go out for multiple suits, but they also said they severely got ripped off because of this guy.

So all in all, his message was that their goal is to see who's the criminal and who got innocently sucked into this case... and said that it boils down to the feedback left for the seller.... meaning... a negative comment about how this was negative will mean they got innocently sucked up. If not, "they plan to take action." I'm worried now because I did leave a positive rating for this guy saying that he was "great, very helpful" (b/c from my point of view, he answered my questions before purchase and that to me seemed helpful... and i was just htinking, well, if it's pdf, i can just study in front of the computer screen. im fine because i personally paid my dues for what the seller said was the worth of the item). NOW should i be thinking of a lawyer? I dont know if what I just said will defend myself enough...

 

[divgradcurl]

They are not going to sue you. You don't have deep pockets, and even if they could prove infringement from the download link, one instance of infringement is hardly worth the effort.

Cooperate with them, see what you can do to indemnify yourself, and go from there. If they start threatening you, or asking for obscene amounts of money to settle, then you might want to consider talking with an attorney -- but from what you've written, it doesn't sound like you need one right now.

And as far as an injunction is concerned, they can't get one without suing you first -- and that is pretty unlikely to happen. Talk to them, and see what they want. If you are worried, talk to a local lawyer, who can review all of the facts of your situation and advise you accordingly -- that's always a good plan of action.

BTW, don't worry about having a felony (or any type) of criminal record over this -- it takes far, far more than a single act of infringement, if there is even one in this case, to rise to the level of criminal infringement. This is a civil matter, nothing more.

 

[shortbus]

Purchasing an infringing work is not infringing. You are not liable for infringement if you simply purchased an infringing work.

This is simply wrong. A buyer of an infringing copy can be sued under a contributory liability theory. Contributory liability requires that you 1) know the work is infringing and 2) assist the infringement. There's no question that a buyer assists the infringement by paying money. As for knowledge, if the buyer knows that it's a PDF of a copyrighted work, not being sold by the original publisher, then she's going to have a hard time claiming that she didn't know it was infringing.

 

[divgradcurl]

This is simply wrong. A buyer of an infringing copy can be sued under a contributory liability theory. Contributory liability requires that you 1) know the work is infringing and 2) assist the infringement. There's no question that a buyer assists the infringement by paying money. As for knowledge, if the buyer knows that it's a PDF of a copyrighted work, not being sold by the original publisher, then she's going to have a hard time claiming that she didn't know it was infringing.

"Assisting" the infringement requires material assistance. Do you have any authority for the assertion that simply buying a work is "material assistance?" If the buyer helped sell the infringing material in some way, or told others to buy this infringing work, that might be contributory infringement -- but I am aware of no authority that cites that a single purchase, standing alone, is sufficient to establish "material assistance" or inducement to support a claim for contributory infringement.

 

[quincy]

theleela - Internet law is still evolving and there is still no CLEAR direction as to how any copyright infringement suit will be decided. An Act called the Digital Millennium Copyright Act (DMCA) has allowed any copyright holder to subpoena an ISP for the identities of all those possibly involved in copyright infringement, leaving the ISP with virtually no liability, and enabling the copyright holder to contact those identified (hence the publisher's contact with you). A decision in California (Grokster and Kazaa) departed from a long-established precedent which held that sites (like Napster) were liable as secondary copyright infringers (guilty of contributory or vicarious liability). Now, however, with Kazaa, copyright holders are unsure of how a court will interpret a copyright infringement case and has left copyright holders with difficult choices. The copyright holder can ignore infringements or file numerous suits against individual infringers (such as yourself), which is what the recording industry has chosen to do. What the copyright holder really wants is to identify the original infringer and hold him liable, and seek damages which can include money lost from the illegal sales of copyrighted material (this is why the identification of all those who have purchased the copyrighted material is important - this will show lost sales).
Contributory negligence is still a possible action a copyright holder can take against all those who purchased material known to be illegally copied. As I said, Internet law is evolving, and there is no definite or clear outcome for any Internet suit.
Also, ONE infringement of copyright is as harmful as MANY infringements against copyright. Infringement, quite frankly, is infringement.

 

[divgradcurl]

Contributory negligence is still a possible action a copyright holder can take against all those who purchased material known to be illegally copied.

As I asked shortbus above, do you have any authority for this assertion, specifically, that a single act of purchasing an infringing item is sufficient to invoke contributory infringement? That a single act of purchasing an infringing item is "material assitance" to the infringer?

Usually contributory infringement works the other way -- instead of suing individual infringers, you go after the "enabler," which is what has happened in the Napster and Grokster cases. In Napster, the "direct" infringers were the uploaders and downloaders, and Napster itself was a constributory infringer.

I am not aware of any authority that suggests that a single act of purchasing an infringing item, standing alone, is sufficient to form a basis for a claim on contributory infringement. If you have such authority, I would be interested in seeing it.

Also, ONE infringement of copyright is as harmful as MANY infringements against copyright. Infringement, quite frankly, is infringement.

Well, I am not sure I necessarily agree that one infringement is as harmful as many -- but what infringement has occured here on the part of the OP? Unless the OP violated one of the enumerated rights of the copyright holder under 17 USC 106, there isn't any infringement.

I notice in later posts that the OP states that she received a download link -- if she downloaded the work from a website or whatever, that would probably be an infringing act under the Napster ruling -- and depending on where she is located, that may or may not be controlling authority. But it's not contributory infringement, and it doesn't change the general rule that purchasing an infringing item is not infringement.

 

[theleela]

I did end up downloading from the link of the website given... oh... so does that go under "reproducing"? Because I thought I was just getting what I personally paid for by getting the item through that link

Also, I am in VA but the company is in CA. Which state's law does that follow?

The company guy said that it seems that this isn't the first time this seller has crossed the line of copyright infringement and that's why they're really going to take this case far. Apparently this seller really knew how to create the situation such that all the buyers may be considered as the criminals also and wouldn't go off revealing info about him...

 

[quincy]

theleela -
Internet law is relatively new. One of the difficulties in filing Internet suits is that, since the Internet is worldwide, and since websites are often accessed worldwide, finding exactly what state (or country) has jurisdiction is problematic. Since the particular case you are unfortunately involved in seems to be confined to the U.S., it is simpler than some. Internet case law is still developing and, as I said earlier, there have been contradictory rulings in infringement cases, so it is really hard to tell what direction any individual suit will take. Some copyright holders have gone after the big money, the major distributors of illegally copied material, while others have been hitting the multiple smaller infringers (mostly as a result of the puzzling "Kazaa" decision in California). The intent in all copyright infringement suits is to stop the infringers. That is what the publisher in your case is trying to do.
The Copyright Act does not expressly say that anyone is liable for the infringement committed by another (as the more strongly-worded Patent Act does), but even in the absense of such express language, the copyright statute does not prevent a copyright holder from imposing liability for copyright infringement on certain parties who have not themselves engaged in the infringing activity - the contributory infringement doctrine is grounded on the recognition that there are others beside the original infringer that makes the infringing for this original infringer possible and profitable (how's THAT for a confusing sentence!). "Contributory" laws have been around forever, and are used to hold one individual accountable for the actions of another.
I am glad you are communicating with the publisher (company) and that he is indicating a desire to go after the guy selling the infringed works. I still would check with Legal Aide for some free advice on all this.
Oh, and by the way, good luck on your grad exam!

 

[theleela]

What was the Kazaa decision about? I tried to google it but I couldn't really find what it was about or what the outcome was.

Also, I know you said it multiple times that no one knows where this will go, but if it's a small company being severely ripped off by this one guy (who seems to have not ripped off just this company but many other prep companies in the past), will they be likely to just go for the big guy? Would it cost them too much money, time, and trouble to go for all the individual buyers as well? (I'd assume all other buyers are in the same boat as me--they were aware that it was PDF and they also had to download it from a website link)

Although the publisher said that the main target is the original seller and buyers who will potentially become a seller, and I am neither, I am afraid that I may be considered as the latter, because I did put a positive rating in this seller (and the publisher at one point said that that's what they're looking into as well--whether the buyer tried to stop this guy by leaving a negative feedback for the illegalness or if the buyer left a positive rating, in which case they will take action...)... but then he said that buyers will mostly just act as witnesses (but then again, he does not seem to know that the buyers were aware that it was PDF)... so he gave me a lot of conflicting statements...

When I call the company tomorrow, would it benefit me at all to slide in the fact that I'll even buy the paper copies of the prep books from the company directly tomorrow to show that I really won't be keeping a copy of the pdf??

How severe is the cost for taking part in contributory infringement usually, although I hope I do not end up with one : (

Also, I checked out the site for Legal Aide in my state, and it seems like they offer free advice only for those proven to have low income... and I don't think I qualify for it... is that the legal aide you were talking about?

 

[quincy]

theleela -
Kazaa (Kazaa Media Desktop or KMD) is a file-sharing program owned by Sharman Networks. It is, what is called, a peer-to-peer service, allowing users to share files directly from each others hard drives. The materials exchanged are, often, copyrighted materials, and Kazaa basically allows users an unrestricted and free access to these materials. Although accused of inducing users to infringe copyrighted materials, a California court found them not liable. Kazaa Media Desktop evaded copyright liability and continues to profit. This decision means that a once effective form of enforcement of copyright against those truly responsible (like Napster) is in question, and it leaves copyright holders little choice but to file suit against individuals who use these intermediaries to infringe (that is what the recording industry is doing).
I honestly don't know what will happen in your case. I am sure that the copyright holder wants to be compensated for losses and would like nothing better than to stop the infringement at its source, but I don't know how it will be handled.
I guess you should trust whatever it is the publisher tells you, but if I were you I would check with a lawyer in your area (perhaps a free initial consultation would work to let you know how concerned you should be).

 

[shortbus]

"Assisting" the infringement requires material assistance. Do you have any authority for the assertion that simply buying a work is "material assistance?" If the buyer helped sell the infringing material in some way, or told others to buy this infringing work, that might be contributory infringement -- but I am aware of no authority that cites that a single purchase, standing alone, is sufficient to establish "material assistance" or inducement to support a claim for contributory infringement.

The traditional test is "induces, causes, or materially contributes". Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (1971). If the OP paid the infringer for a copy, that is by definition an inducement. The infringer wouldn't have made / distributed the copy if the OP hadn't paid him for it.

Your argument defies common sense. You're suggesting that a person would be contributorily liable if she found a buyer for the infringing copy, but not if she bought it herself.

 

[divgradcurl]

Although accused of inducing users to infringe copyrighted materials, a California court found them not liable.

Well, technically, Shaman Networks and Kazaa was not part of the Grokster case at that time, so didn't benefit from that ruling -- but in the end, it doesn't matter, since the Supreme Court overruled and held the P2P netwroks liable for inducing infringment.

Then they all went and settled anyway -- so the only binding stuff left is the Supreme Court case, which is pretty much in line with the Napster decision.

BTW, the reason why the RIAA and the like are not targeting the intermediaries has nothing to do with the court decisions -- they are all in the RIAA and MPAA's favor -- but has more to do with the fact that most of the P2P companies have relocated overseas to places not easily reached by the long arm of the law.

I'm not trying to argue with you, but there doesn't seem to be any reason to scare the OP any more than necessary.

 

[divgradcurl]

The traditional test is "induces, causes, or materially contributes". Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (1971). If the OP paid the infringer for a copy, that is by definition an inducement. The infringer wouldn't have made / distributed the copy if the OP hadn't paid him for it.

Well, that case says nothing of the sort. In fact, the case lists a few instances of what might be "material contribution" -- "advertising agency which placed non-infringing advertisements for the sale of infringing records, a radio station which broadcast such advertisements and a packaging agent which shipped the infringing records could each be held liable as a "contributory" infringer" and "maker, printer and seller of an infringing photograph were held jointly liable for the complainant's damages" and "the defendant department store (Green) was held accountable for the infringing sale of pirated records manufactured and sold by its retailing concessionaire (Jalen)." Nowhere in the case does it suggest or state that a single purhcase, standing alone, is sufficient to create liability under a contributory or vicarious theory.

Your argument defies common sense. You're suggesting that a person would be contributorily liable if she found a buyer for the infringing copy, but not if she bought it herself.

Maybe it does defy common sense -- but it is consistent with the law. Again, if you can find a case that found a purchaser of a single infringing article liable for contributory or vicarious infringement, I would be interested in reading it. I am unaware of any case where a single purchase, standing alone, was sufficient to impute vicarious or contributory liability for copyright infringement.

Unlike patent law, copyright law does not make it unlawful to use an infringing work. Even under patent law, purchasing an infringing article is not actionable on its own -- but use of an infringing article under patent las is infringing, so buyers can be nailed that way. But copyright law is a different beast.

 

[quincy]

Well, yes, divgradcurl, you ARE trying to argue with me (and shortbus) - but that is OK.
You are probably in a better position to judge the outcome of an Internet copyright infringement suit than I am, anyway.
And I certainly don't want to scare anyone, either, but I would hate to see theleela totally unprepared for all possibilities (as remote as some may be). All of those college kids merrily down-loading tunes didn't know quite what hit them when copyright infringement suits started flying THEIR way. At least theleela may have time to duck.

 

[theleela]

At least theleela may have time to duck.

Oh, what do you mean time to duck you mean, duck by consulting a lawyer before I officially call the company tomorrow? Wait, was that your suggestion or was it that I should call and if they start threatening me or trying to fine me or something, then I should go try to find a lawyer?

(and usually, is the free consultation a binding agreement that you will be consulting him further with the case or anything?)