The key to the RIAA argument seems to be the encouraging aspect more than anything else. In order to show liability on the part of the operator of the Usenet message board network, lawyers must establish not just that copyrighted content can and has been shared on Usenet, but also that Usenet.com encouraged this behavior.
Usenet.com's website clearly states that they don't monitor any identifying information about who uploads, downloads, or posts anything on the network of message boards, which the RIAA apparently plans to argue is an invitation to do illegal things.
"They started by going after Napster, Aimster, Grokster, and after that they said, 'We're gonna go after individuals to see if we (can) get into the psyche of people that peer-to-peer file sharing is wrong,'" says Washington, D.C.-based copyright attorney Ross Dannenberg. "Now it has come full circle. Throughout this cycle, (Usenet) newsgroups have been ignored."
He suggests that they may use DMCA's Safe Harbor provision as a defense. It shields service providers from liability for their customers' infringement as long as they comply with Takedown Requests from content owners. YouTube is already testing this defense, but is in a slightly different position since YouTube's product is their website, whereas Usenet.com's product is actually a connection to a network of message boards.
Since Usenet.com's policy against monitoring makes it if not impossible, at least impractical to locate individuals uploading infringing content, a victory in this case would be a loud statement to Usenet posters, many of whom feel they're out of the RIAA's reach because of the network's anonymity.
Source: Wired News
Written by: Rich Fiscus @ 16 Oct 2007 22:24
