Apollon soon in kde-extragear

[Petter E. Stokke]

On Tuesday 10 February 2004 15:13, Waldo Bastian wrote:
> See http://www.hartmanwinnicki.com/Contributory_Copyright_Infr.htm
> It discusses two different cases and one of them is found on the wrong
> side of the law, it is important to recognize what sets these two cases
> apart in order to make sure that KDE remains on the correct side of the
> law.

I feel I ought to elaborate on this.

Quoting from the above linked article: "In granting Grokster's motion for 
summary judgment, the court held that Grokster did not materially 
contribute to the infringing activity, as Grokster had no control over the 
FasTrack network and was not in a position to stop the infringement once 
it received actual notice of the unlawful activity. Thus, the court held 
that there was no evidence of active and substantial contribution to the 
infringement itself."

Especially: "Finally, on the issue of vicarious liabilty, two elements are 
required: the right and ability to supervise the direct infringer, and 
direct financial interest in the infringing activity."

It would seem reasonably obvious that if this is true for Grokster, it's 
true many times over for Apollon. IANAL, but still.

Further, on the Aimster case: "Aimster, on the other hand, provided in its 
tutorial examples of downloading copyrighted music, including works which 
the recording industry notified Aimster were being infringed. The Aimster 
court noted that "[t]he tutorial is the invitation to infringement that 
the Supreme Court found missing Sony." "

Elaborating on this: "The court held that Aimster went too far when it 
encouraged users in its online tutorial to use the technology to violate 
the copyrights of others, thereby warranting the court to shift the burden 
of production to Aimster to demonstrate substantial noninfringing uses."

I know that KMLDonkey in no way officially encourages or teaches the user 
to share or download illegal material, nor can I find any evidence of 
Apollon doing it. Furthermore, there is no financial gain involved in 
either case, neither direct nor indirect. Hence, it should be quite clear 
that neither party is in any danger of being found guilty of contributory 
copyright infringement in the US, especially with the precedent of the 
Grokster case in place. (It should be pointed out, however, that the MPAA 
has taken the case to the Appeals Court, but seems to be having little 
success. [1])

I'd almost venture to claim that, unless apollon.sourceforge.net should 
turn into a subscription based warez site in the near future, there's 
absolutely no legal reason for concern, at least in the US. The Dutch 
Kazaa case might seem to establish a similar precedent in the EU zone.

Of course, in all fairness, none of this is a guarantee against KDE e.V 
being sued by the MPAA, but then again one can be sued over anything, no 
matter how silly. A point in case would perhaps be a lawsuit you may be 
aware of already, namely that of SCO vs IBM...

[1]: http://www.groklaw.net/article.php?story=20040205005057966

-- 
Petter E. Stokke <gibreel at project23.no> http://www.gibreel.net/
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