2 ms·

IANAL but I don't think Apple is liable in this case. It sounds just like websites not being responsible for user created content. They do have to remove illega

IANAL but I don't think Apple is liable in this case. It sounds just like websites not being responsible for user created content. They do have to remove illegal content, and must have means to report and act on it, but you can't e.g. sue hackernews because someone posts a torrent of a Marvel movie.

tzs 6y ago
All the elements for copyright infringement would be there: (1) Apple made copies and distributed those copies, (2) Apple is not the copyright owner, and (3) Apple does not have a license from the copyright owner. Apple might not know it is infringing, and indeed might even think it has permission because the developer told it the developer had made sure all the licensing was in order, but the defendant's mental state in a case of direct copyright infringement is not relevant. Copyright infringement does not have a mens rea, at least in the US. "[i]ntention to infringe is not essential under the Act.", Buck v. Jewell-Lasalle Realty Co., 283 U.S. 191, 198 (1931). The website shield against liability for user created content that is most often used is from section 230 of the CDA. That specifically carves out an exception to the shield for anything relating to intellectual property, so 230 is out. The DMCA looks like it might work. The people claiming infringement could send a DMCA take down request to Apple, and Apple could take down the content and give them the contact information necessary to sue Automatic, and that should get Apple out of the loop. But DMCA has limitations, too. If a service provider is infringing themselves, or acts in concert with the people providing the infringing material, then the DMCA safe harbors may not apply. Acting in concert is more than just providing hosting, and I have no idea if Apple does enough more to reach acting in concert. There's some interesting Q&As about DMCA safe harbors at https://assets.fenwick.com/legacy/FenwickDocuments/DMCA-QA.pdf https://assets.fenwick.com/legacy/FenwickDocuments/DMCA-QA.p...

tzs 6y ago

All the elements for copyright infringement would be there: (1) Apple made copies and distributed those copies, (2) Apple is not the copyright owner, and (3) Apple does not have a license from the copyright owner. Apple might not know it is infringing, and indeed might even think it has permission because the developer told it the developer had made sure all the licensing was in order, but the defendant's mental state in a case of direct copyright infringement is not relevant. Copyright infringement does not have a mens rea, at least in the US. "[i]ntention to infringe is not essential under the Act.", Buck v. Jewell-Lasalle Realty Co., 283 U.S. 191, 198 (1931). The website shield against liability for user created content that is most often used is from section 230 of the CDA. That specifically carves out an exception to the shield for anything relating to intellectual property, so 230 is out. The DMCA looks like it might work. The people claiming infringement could send a DMCA take down request to Apple, and Apple could take down the content and give them the contact information necessary to sue Automatic, and that should get Apple out of the loop. But DMCA has limitations, too. If a service provider is infringing themselves, or acts in concert with the people providing the infringing material, then the DMCA safe harbors may not apply. Acting in concert is more than just providing hosting, and I have no idea if Apple does enough more to reach acting in concert. There's some interesting Q&As about DMCA safe harbors at https://assets.fenwick.com/legacy/FenwickDocuments/DMCA-QA.pdf https://assets.fenwick.com/legacy/FenwickDocuments/DMCA-QA.p...