Kanye West vs. The Pirate Bay: Leaning on the Inducement Liability Standard

In February, Kanye West released “The Life of Pablo,” his most recent album, exclusively on Tidal, a music-streaming app owned by rapper Jay-Z.  Allegedly, 48 hours after the album’s release, The Pirate Bay (“TBH”), a website torrent, made the album available for downloads through its peer-to-peer file sharing system.

Kanye hoped that his exclusive release would increase Tidal’s music-streaming downloads and subscriptions; however, it did quite the opposite, resulting in an estimated loss of 10 million dollars in album sales.

Subsequently, Kanye took to Twitter and threatened to sue TPB for copyright infringement.  TPB, in response, created “Kanye Bay,” another proxy download made in Kanye’s name.

The biggest problem in finding TPB liable has to do with the United States Copyright Law’s limitation on copyright infringement. 17 United States Code section 512 provides that a “service provider shall not be liable for monetary relief, for infringement of copyright by reason of intermediate and temporary storage of material on a system or network controlled operated by or for the service provider in a case which the material is made available online by a person other than the service provider.”  We obviously know that TPB is facilitating piracy as committed by their subscribers, as the system allows subscribers to post IP addresses from which downloads of copyright protected materials can be produced.  But the way the law is written, it is difficult to find TPB liable under Copyright Law as the company’s system acts as an intermediary that only creates a pathway to reproduced copies of copyrighted works. But is there another route to finding liability?

A Ninth Circuit decision could work in Kanye’s favor, see Columbia Pictures Industries, Inc. v. Fung, No. 10-55946, 2013 WL 1174151 (9th Cir. Mar. 21, 2013).   Here, the court adopted Grokster’s inducement liability standard in finding Fung liable for copyright infringement (see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913 (2005). The Court in Grokster inducement standard is as follows:

 “[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression … is liable for the resulting acts of infringement by third parties.” Id. at 936-37.

The Ninth Circuit Court of Appeals found Fung liable for copyright infringement when he made available motion picture films on his torrent.  In finding Fung liable, the Court discussed how Fung offered his services with the object of promoting subscribers’ use to infringe copyrighted material and how Fung solicited and encouraged users to upload torrents.  Is not TPB doing the same?  What about now that TPB has created “Kanye Bay”?  Is this not solicitation and encouragement? Against Kanye’s favor, he was recently accused of downloading from TBH as he uploaded a screenshot of computer showing alleged misconduct. Unclean hands? See picture of alleged misconduct below.

Cited Sources




"Eat, Move ... , Repeat!" #Billions

In the mean time, in between time, when I'm not billing clinic hours or writing for the IP journal, Idiscuss my new TV fascinations here. If I don't, I'll become one wildly insane law student. Creativity keeps me alive, well, and balanced. What does exercising logic do? To be determined.

Over two weeks ago, I finished seasons 1 and 2 of The Affair, and it was everything! It's right up there with House of Cards in a trashy, small town kind of way. What's not to love?

Recently, a friend recommended that I watch another Showtime series--Billions. Before going any further, I must applaud Showtime for stepping up its programming. I was not a fan of Homeland, despite its filming in North Carolina. But Billions is alluring.

It's important to have a character to love, hate, fantasize about, etc. When script writers lure their intended audience in ... to engage with characters in such a way that provokes intense feelings, a hit series is born.

It also helps ratings when script writers can provoke mixed feelings about a character. For instance, remember when ABC Scandal began? Women all over the world hated Olivia Pope (Kerry Washington) for becoming President Grant's sidepiece. But by the end of 4th season, those same women began to empathize with Olivia's character as she moved into the role of First Lady retaining her crown as "America's Mistress."

I'm not personally invested in Billions' characters. I don't believe that anything about my person connects with any of these characters. I won't go into why that is. Naturally, I don't empathize, hate, or love any of them. Axe is kind of cute, but that quickly fades. Nonetheless, I watch. I watch for educational purposes. Watching helps me spot legal issues.

For instance, you have Axe who is the head of ... wait ... what is he the head of again? Some financial institution ... oh yes ... a hedge fund, that commits all kinds of white collar crimes with the primary one being--insider trading. Insider Trading: The Sexiest White Collar Crime ever. Don't you agree?

Attorney General Chuck is also sexy because he's Attorney General. Duh! He sets out to follow the rules, keep his flock in line, and look after his philandering father. He is also blind sighted by a mole. It appears that Chuck is having poor luck, but I'm sure this will change soon.

Above all, Chuck maintains his professional values, but things get murky when he's forced to choose between self-preservation and family. Mind you, this is all true as of episode 4. I think you will find Attorney Chuck equally impressive, despite his idiosyncrasies and questionable interests.

Without spoiling it too much, I urge you to spend your time on some worthy TV programming--Billions.

By the way, add "Eat, Move, Sh*t, Repeat" to your directory of shady quotes. I won't tell.


5 Things I learned from The Affair I'm Having

I'm having an affair with a Showtimes series: The Affair. As soon as I get home or right before I go to sleep (just before 2 am), I watch two episodes, about a hour long each. I have to be up around 6 a.m. twice a week, so timing is everything.

The Affair is taking a substantial amount of my time. It's only been a week, and I'm nearly through the first season. I'm obsessed. I'm estranged from everything and everyone because I'm glued to my TV, watching Alison and Noah experience their affair. I honestly feel like I'm a fly on the wall. The shaky camera and in-depth shots make me feel like I'm in the room ... with all of the actors.

With all of the crazy things that the world can teach you, here's what I learned from The Affair.

See "sarcasm."

1. "Scotch fixes everything." This theme is repeated in two different episodes. First, when Alison goes for a doctor's visit at Dr. Ullman's office, he offers her scotch for her troubles and her other problem. Then, Max Cadman, Noah's ride or die, tells Noah to calm down and drink this Scotch. These scenes occur in that order in two different episodes.

2. Men Cheat with Ugly Women. First, Noah's father-in-law, Bruce, is the King of pretentious fools everywhere who walk around feeling sorry for themselves because, despite their accolades, they cannot stop thinking about women from their past lives. This is so sad to me. Anywho, here's what Bruce says about the woman he still thinks about (despite being a married man): "she wasn't the prettiest, but she did something to me." This mystery girl inspired Bruce's best-seller! Second, Alison pales in comparison to Helen, in my opinion.

3. Don't Tell Your Significant Other You Cheated. This is a Selfish Act. If I tell you, I will spoil the show for you. Go see for yourself. But both Alison and Noah are warned not to tell their spouses. See what happens next.

4. A Studio is a Stash House for a Mistress. Somehow Alison thought she was above a studio apartment in one of the nicest neighborhoods in Brooklyn. Honey, that's a mistress for ya'!

5. Every Cheater Should Prepare to Pack a Duffel Bag. First, Noah had to pack his duffel bag. Then, Alison had two. Go see how it happened.

If you haven't watched The Affair, take my advice: DON'T (No, go watch)! It's the best trainwreck showing on TV now. If you watch it, "Welcome to the END of the WORLD."

Gotta go. Got some studying to do. But before you go, make sure to check out my shop!