Comments on: The ‘means’ of infringement: tracing a line through Moorhouse, Tape Manufacturers, Cooper, and Kazaa (via Sony) http://nic.suzor.net/2010/02/05/the-means-of-infringement/ Nic Suzor's personal blog Fri, 12 Aug 2011 20:38:01 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: nic http://nic.suzor.net/2010/02/05/the-means-of-infringement/comment-page-1/#comment-16 nic Sun, 07 Feb 2010 20:49:04 +0000 http://nic.suzor.com/?p=338#comment-16 I'm not sure; Kazaa provided the 'means', but did not directly infringe; same with UNSW, Cooper, Grokster, Aimster. Napster probably directly infringed, maybe. Google Books would probably be providing the 'means' if they provide a search interface in a library the same as if UNSW provided a photocopier in the library. I think there's plenty of scope for authorisation, just never for passive ISPs (which isn't a huge problem for anyone, because we have the safe harbours anyway, which already say that ISPs won't be liable). I think that the 'means' test isn't really a legal test, but his way of interpreting the factual cases, which the FCAFC should allow, since it doesn't actually fall into error. I’m not sure; Kazaa provided the ‘means’, but did not directly infringe; same with UNSW, Cooper, Grokster, Aimster. Napster probably directly infringed, maybe. Google Books would probably be providing the ‘means’ if they provide a search interface in a library the same as if UNSW provided a photocopier in the library. I think there’s plenty of scope for authorisation, just never for passive ISPs (which isn’t a huge problem for anyone, because we have the safe harbours anyway, which already say that ISPs won’t be liable).

I think that the ‘means’ test isn’t really a legal test, but his way of interpreting the factual cases, which the FCAFC should allow, since it doesn’t actually fall into error.

]]> By: Wen http://nic.suzor.net/2010/02/05/the-means-of-infringement/comment-page-1/#comment-15 Wen Sun, 07 Feb 2010 09:25:41 +0000 http://nic.suzor.com/?p=338#comment-15 However, if the 'means' is the intentional use of a facility to infringe copyright (which is how I follow Cowdroy's analysis of Moorhouse and the technology cases), then does it not follow that only *rarely* will a person control the 'means' and *not* be a primary infringer? If so, doesn't that cut down the breadth of authorisation liability significantly? My main fear is that a panel of three FCA judges will disagree with this 'means' vs 'pre-conditions' distinction. And if that goes, the central pillar of Cowdroy's reasoning is destroyed. However, if the ‘means’ is the intentional use of a facility to infringe copyright (which is how I follow Cowdroy’s analysis of Moorhouse and the technology cases), then does it not follow that only *rarely* will a person control the ‘means’ and *not* be a primary infringer? If so, doesn’t that cut down the breadth of authorisation liability significantly?

My main fear is that a panel of three FCA judges will disagree with this ‘means’ vs ‘pre-conditions’ distinction. And if that goes, the central pillar of Cowdroy’s reasoning is destroyed.

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