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Comment by driverdan | Hacker News Reader

IANAL. First of all a cease and desist doesn't require you to do anything. It's merely a threat. That said it seems pretty clear that you're violating copyright laws. The DMCA only applies to user generated content (UGC). You're not letting users input their own links to 3rd party content, you're finding the links yourself. It doesn't matter where you get them from. Not only that but you're not linking to this content on other sites, you're actively playing it for users within your app.

It's very cool you built this in HS. Let the whole thing be a good lesson in building apps and dealing with the law.

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It's not at all clear that he's violating any laws. There is no infringement in providing access in a good-faith belief that the content is legit. And it's a fair assumption that the people actually publishing the music files on their websites wouldn't be doing so without authorization from the rights holders. Further, downloading in general (as opposed to publishing) is expressly legal in some countries (e.g., reportedly Germany).

RIAA's best argument would be "contributory infringement", but findings of CI have succeeded only when the actors had some reason to think the files in question were published without authorization. Further, the RIAA offers no evidence for its claim that many of the files were unauthorized, and its implication that you have some way of knowing their licensing status is pure fantasy or lies.

So, I disagree with the "give up, it's illegal" assessment.

The real problem here is that success in civil litigation is directly related to wealth, such that we have a two-tier court system which is a travesty of justice for the have-nots and an unregulated weapon for the "haves". So yes, you have to capitulate, but not for the reason the above poster suggests.

"There is no infringement in providing access in a good-faith belief that the content is legit."

I don't believe that is true. Content distribution is a complicated affair. Redistribution of content is not as easy as saying "well if site xyz has the right to distribute it, so do I"

The argument also hinges on the idea that the operator has "good-faith belief that the content is legit".

Stating that you have this good faith belief is not actually the same thing as having it.

Not to mention that even having it doesn't mean anything at all.

Or, well, it make not make it "willingly infringement", but it still makes it infringement.

He has to capitulate because he's 18, ignorant of the relevant laws, and likely has no money to be thrown away on litigation. He definitely has shallower pockets than the RIAA. In the civil arena in the U.S., that's an automatic loss.

Since operating in good faith is apparently untenable, there is no particular reason for anyone to operate in good faith with respect to the RIAA. Thus copyright piracy proliferates.

I'm sure that there are plenty of software writers that would be happy to help the RIAA connect their members with potential new fans and paying customers over the Internet. It's a crying shame that the RIAA consistently turns them away by acting like total dicks.

While I also disagree that it's illegal, I do concur with the decision to fold. If you don't have a big gun behind you to back you up, like the EFF or ACLU, you lose against the RIAA. Even if you "win" in court by the judges' decisions, you already lost time, money, and reputation by the time you get there, with no way of ever getting that back.

The only way to win is not to play.

He should have made decent revenue with banner ads or interstitials at this point with that large user base. Getting a lawyer to at least look into it would have been an option.

I agree.

He's young enough and clearly sharp enough to get some promotion out of his ordeal (front page HN isn't too bad) and will move on to certainly bigger and better things. No reason to start out your dev career in the hole a few hundred grand to lawyers and the RIAA and get nothing out of it.

Like Kenny used to say, "You gotta know when to hold them and know when to fold them."

> Since operating in good faith is apparently untenable, there is no particular reason for anyone to operate in good faith with respect to the RIAA. Thus copyright piracy proliferates.

Let's be real here. You're not operating in good faith when you link to a bunch of major-label content free on the internet. It's implausible that you actually believe that content to be legitimate. Rather, you're looking to profit from a loophole.

The only way to win is not to play.

How about a nice game of chess?

There's no such thing as "legit content". Licensing is not a characteristic of the content, it's a relationship between the content and the person distributing it.

So give a crude example, the content on Netflix is "legit", in the sense that they have the right to distribute it, but that doesn't make it legal for you to record and retransmit the same content.

If you don't know if you can distribute it, you should assume you can't, because that's the default position in the law. You need to have some kind of license to override it.

He doesn't distribute it though, only links to it. I am pretty sure I am allowed to link to netflix even though I don't have distribution rights for the content hosted there.

Beemp3 provides just links. HyperMusic (from the screenshots) actually played them on the app itself. Maybe it downloaded them locally, but that's an irrelevant technical detail.

> If you don't know if you can distribute it, you should assume you can't

That's 100% wrong. The default state of a work of art is to be in the public domain. Copyright law creates only a limited exception to that general rule.

These rights have to be waived for it to become public domain.

http://www.copyright.gov/title17/92chap1.html#102

It's actually difficult to explicitly put your work in the public domain. There are no well-worn routes to doing so.

The Creative Commons level zero license is probably the best option. In some jurisdictions it is impossible to give up something into the public domain, so the CC0 explicitly gives up as many rights as possible. If it is possible to put something into the public domain, then it does.

Not really. Works are automatically copyrighted upon creation. It's not some limited exception. You cannot assume a work is public domain until proven otherwise. Otherwise you'll be getting a nastygram from the RIAA.

Works are automatically copyrighted upon creation for a limited time.

Morally speaking you might be right, and on geological timescales, sure. But every work is under copyright the moment it is created until copyright expires unless the creator specifically gives it to the PD.

In the modern world, unfortunately, if there's no accompanying license with the material it's pretty likely that you don't have the legal right to distribute it.

I am aware of that. However, it doesn't invalidate my point.

That's incorrect in any country (167 of them, including most of the west) that signed the Berne Convention (http://en.wikipedia.org/wiki/Berne_convention), which makes all works copyright-by-default.

For a limited time.

From the letter:

The clear purpose and/or design of this application is to encourage, _facilitate_, and/or cause its users to stream and/or download popular sound recordings, the vast majority of which are owned or controlled by RIAA Member companies and are not authorized for distribution in this manner, while at the same time providing you/your company with _certain financial or related benefits_.

This is how a lot of Dutch sharing websites were closed: Facilitating copyright infringement with monetary gain. They got TV links (a site very similar to OP's site, only crawling for and posting links and embeds) for trademark infringement. Later on some Dutch ISP's were forced to block The Pirate Bay, because by allowing access to the site they facilitated copyright infringement(or so the court ruled). A Dutch blog was charged with republishing copyrighted material by placing a link. This later was overturned and became a fine for "facilitating".

Placing some links as facilitating copyright infringement sets a dangerous precedent for net neutrality.

So then if Google happens to index and show a link to 3rd party content, it's also finding the links itself, and is similarly liable?

Yes but Google has plenty of money so it is ok.

I am not a lawyer. I believe Google is exempt because it indexes all links it can find. It needs this to operate a general purpose search engine. As soon as Google became a specialized torrent search engine they could be similarly liable. Also Google has to comply with legit DMCA requests or they still risk being liable.

I think better analogy is Bing video search. Not only it finds links but also plays it without visiting a page the video is actually hosted on.

If Google becomes aware of such a link, for any reason, it is obliged by law to deindex.

How is Google supposed to determine copyright status of arbitrary sites/"links"?

It is not obligated to do that.

So what is "becomes aware of a link"? How is that different than the copyright holder sending a notice? Because without the copyright holder (and even courts) it's not very clear.

ANYBODY could make them aware, not just the rightsholder. That's what happened with Mega: users complained about the quality of Dexter videos.

A rightsholder would notify them.

I wonder how can he be violating any law with respect to distribution of copyrighted content when he is not distributing anything. He is just pointing to other sources doing the actual distribution (which may be legal). He is just providing links, although with a nice interface.

The same way ThePirateBay is guilty of infringement when all the host is "links". They host "nothing" and yet are the scourge of the interwebs.

The brilliant fact of magnet links is even when TPB goes down, you can ask Google for a cache of a TPB page. The cache of the page still has functional magnet links.

Repeating a lie doesn't make it any more true.

Linking can be considered "dissemination" thanks to the DMCA, see http://www.chillingeffects.org/linking/faq.cgi#QID152

Yet somehow Google still operates.

But to respond to OP, IANAL but I think that you might have folded too easily. But it's understandable that you probably want to avoid a lawsuit at any cost.

Also, you might want to check this out

http://www.chillingeffects.org/dmca512/faq.cgi#QID862

and google around for 'wrongful dmca takedowns'.

Google actively removes links to infringing content once notified.

E.g. look at the bottom of https://www.google.com/search?q=rihanna+diamond+mp3

I'm aware of that. That still implies that at some point Google linked to illegal material yet when requested, they removed it. Presumably HypedMusic could have had a similar deal.

Yes, a provider can follow the DMCA safe harbor procedures to facilitate the filing of DMCA takedown notices, and comply with those promptly. The details are outlined here: http://www.chillingeffects.org/dmca512/faq.cgi

Basically, a provider needs to provide contact information for a designated agent for DMCA takedown notices. Had Luke done so, and complied with legal DMCA takedown requests (as well as counter-notifications), he could have continued operating his service; however, that may have become considerably more work than he wanted to put into running the service.

There should be Anon Legal spamming these services with tons of links to real sites supported by RIAA as to make searching for any legal music useless through google. Because google complies with RIAA, an effort should be made to make for google to have it be too expensive to verify said claims and/or RIAA suffer from same tactics they employ.

How can you know what a DMCA Takedown is and not understand how Google can operate?

The DMCA gives you a "safe harbor" from accidental copyright infringement. But once you know it's copyrighted you have to take it down. AKA, the DMCA notice.

The DMCA won't protect you from knowingly linked to copyrighted material and waiting until someone sends a letter. That's how Megaupload is getting pwnd.

Maybe I know how it works. Maybe I said that to highlight exactly what you are talking about and to underscore the fact that he did not have to shutdown his service if he was compliant with DMCA takedowns, just like Google.

His app store page had a screenshot of his app playing a Madonna song...

"Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. "

His app actually played the media though and not for personal use. The copyright holders have exclusive rights to determine how their content gets played/broadcast.

Don't become this guy: http://www.zdnet.com/student-richard-odwyer-spared-us-extrad...

Sadly, the Internet isn't our playground anymore. You have to watch what you do even if it's just curating links to things you can download for free.

He won his case and is suing the US now I believe.

> I wonder how can he be violating any law with respect to distribution of copyrighted content when he is not distributing anything

Anton Vickerman didn't host anything either. His site (surfthechannel) was also just a collection of links.

And, sure enough, he was held not to have committed any copyright-related offence.

So they got him on conspiracy to defraud [the record companies] instead. He's now serving a four year prison term after a private prosecution by FACT, a copyright industry trade organisation - an extraordinary move, initiated after the CPS (state prosecutors) refused to prosecute him. (Note: this is in the UK, not the US).

http://en.wikipedia.org/wiki/Anton_Vickerman

http://arstechnica.com/tech-policy/2012/08/private-justice-h...

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