Kim Dotcom’s primary argument against the U.S. government’s copyright laws in a recently released white paper is pretty simple: Can I sue Ford if an old lady runs me over with one? Probably not.
Basically you can’t sue the corporation for what someone does once they’ve appropriated that corporation’s product or service and started using it. For example, companies that make “assault” rifles would be in a heap of trouble.
Or companies, like Megaupload, that share files uploaded by users shouldn’t be liable for the actions of it’s uploaders.
From the white paper:
“The prosecution seeks to hold Megaupload and its executives criminally responsible for alleged infringement by the company’s third-party cloud storage users. The problem with the theory, however, is that secondary copyright infringement is not – nor has it ever been – a crime in the United States.”
Though I can sue Ford if that old lady ran into me because of faulty breaks, especially ones that they knew were faulty.
Even worse is if they knew those breaks were faulty, but kept producing vehicles because the cost of fixing the breaks would cut into profits.
A big part of proving secondary copyright infringement in the past has been gross negligence, and thus criminal negligence. Basically asserting that the corporation or individual, in this case Megaupload, didn’t do enough to mitigate the copyright infringement as they simultaneously profited from that infringement.
Here, Kim Dotcom’s argument is just as simple:
While Megaupload systematically responded to countless (copyright) take-down notices, it went even further to guard against copyright violations. It voluntarily gave major copyright holders direct access to its servers to remove links they considered to be infringing – without any oversight by Megaupload – and without requiring them to follow statutory take-down notice procedures.
What this says is that Megaupload gave companies the ability to remove infringing material — which is itself unprecedented — but to go further, companies didn’t have to justify why material was removed from Megaupload.
Kim Dotcom cites the case of Viacom vs. YouTube to drive his point home. In that case, the courts ruled that YouTube not only wasn’t liable for what users uploaded to its platform, but that YouTube wasn’t even obligated to actively monitor for infringing material, even though they were perfectly capable.
That responsibility fell, of course, on the shoulders of the copyright holders, which is central to the argument Kim Dotcom’s white paper makes.
Which is why the enforcement of copyright shouldn’t fall on the shoulder’s of the government, but on the copyright holders themselves — which is the ability Dotcom says he afforded to any corporations that asked.
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