Watching over the pipes
... and other wonkish digital-policy-based musings
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I'd love to agree with you, but I am sure it could be argued that O'Dwyer did know, or had good reason to know, that what he was linking to was infringing.Wasn't the recent Newzbin case a successful use of 107(2A)? I recall commentators said things like "Why hasn't anyone used it before? Now that Newzbin is settled, we are sure there will be more cases relying on that Clause."
@Charles, Not at all. I've read both rulings of both Arnold, J and Kitchin, J. Ref: Twentieth Century Fox Film Corporation & Anor v Newzbin Ltd  EWHC 608 (Ch) (29 March 2010) The claimants applied for damaged under S97 and then an injunction under S97A. S97 has similar "knowledge" exemption and the claimants proved using the structure of the membership-only site that the directors had knowledgeThe defendants' "Knowledge of infringement" exemption fell apart under cross examination, it's worth reading paras 65-78 of Kitchin, J's ruling
The Australian case report is athttp://www.austlii.edu.au/au/cases/cth/federal_ct/2005/972.htmlThe offence in the UK 1988 Act is of "communicating the work to the public" - see s102(2a).But in para 110 of the Australian judgment, it says "Given my finding that Cooper did not "make available online" or "electronically transmit" the sound recordings, the applicants must also fail in their submission that E-Talk/Com-Cen directly infringed copyright by communicating the music sound recordings to the public."The Australian case found that the defendant was liable in tort because he had "authorised" infringements, by linking to the content elsewhere. (I believe that the Australian courts have developed a wider meaning to "authorise" and that this arises because their statutory law is worded differently from that in the UK - but that would have to be looked into.)That raises the argument that even if linking to copyright infringing sites is itself is infringing, (and it is arguable that is is not) it does not follow that so linking is a crime.
Just to correct, in the post above the offence is 107(2a), not 102.
What were those legal reasons for the removal of the original post on this page. If you cannot say, say why you cannot say. This page is linked to from Julia O'Dwyers blog because an article is meant to be here that is not (I guess you know that already).
Since examining this issue in more detail in A close examination of the US claim of jurisdiction in the O'Dwyer extradition it has been pointed out to me that some legal experts feel extradition is not appropriate and as a direct consequence I should not write anything that could be seen to prejudice a UK trial for Richard under UK law. I think this is in the interests of all concerned.
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