Disney and Time Warner are suing a company called Triton Media, in an effort to expand the definitions of “contributory copyright infringement” and “inducing infringement.” [Note: There is more than one Triton in the US media world, unfortunately. The defendant here is Triton Media of Scottsdale, AZ. Triton Digital Media of Sherman Oaks, CA, is NOT involved.]

Triton

The gist of the Complaint (and thanks to Eriq Gardner of The Hollywood Reporter for posting a PDF) is:

Defendant has owned, operated, provided advertising consulting and referrals for, and/or provided other material assistance to the websites www.freetv-video-online.info, supernovatube.corn, donogo.com , watch-movies.net, watchmovies-online.tv , watch-movies-links.net , thepiratecity.org, and havenvideo.com (collectively the “Websites”), whose purpose is to promote, facilitate, and profit from the infringement of Plaintiffs’ copyrighted works. The Websites are forprofit “one-stop-shops” for infringing copies of Plaintiffs’ copyrighted works. Specifically, the Websites, have posted, organized, searched for, identified, collected and indexed links to infringing material that is available on third-party websites, otherwise provided access to infringing material, and/or hosted infringing material. Plaintiffs are informed and believe, and based thereon allege, that Defendant profits from its misconduct by way of the advertisements displayed on the Websites or other websites accessed through the Websites. Defendant’s conduct constitutes copyright infringement.

Note that this is a double jump – the websites are accused of contributory infringement under long-standing copyright doctrines, especially as elaborated in 2005 in Grokster, and then Triton is accused of contributing to the contributory infringement. A repeated formula in the Complaint is that Triton “performed consulting and referral services regarding advertising for [a particular website],“ but, as Gardner notes, the Complaint “largely focuses on the misdeeds of the [web]sites” and is “rather thin on specific details of Triton’s services to these websites.”

The Complaint is replete with allegations that Triton had complete knowledge of the infringing activities of its clients, largely because the content companies had complained, and it emphasizes the extent to which the websites’ business model depends on enabling users to access copyrighted content and then selling advertising, but it is a bit elusive on the question whether Triton’s business model depended on accessing illegal content. That is, is Triton a general adviser on website advertising that happens to have some shady clients, or is it an integral and intentional part of a shady network?

It is an important distinction. Intellectual property rights must be protected for the sake of all of us. We cannot have a vibrant creative culture unless creators and their facilitators, including financiers, packagers, and distributors, can monetize the product. Furthermore, it is not feasible to enforce intellectual property rights by going after illicit users one-by-one. So the logical approach is to attack the middlemen who make a business out of facilitating infringement and make their money by siphoning off the eyeballs and advertising dollars that would otherwise go to legitimate providers.

On the other hand, it is important not to push too far back up the chain. It is not sensible to create an enforcement system, in any area, in which everyone in business becomes his brother’s policeman. This imposes excessive transaction costs on routine commercial operations, and is replete with the possibility of error and officiousness. Auto dealers should not have to probe the source of their customers’ funds, teachers should not be cross-examined on whether their purchase of children’s glue is to start a meth lab, banks and credit card companies should not be made responsible for the propriety of every payment they process.

So, while one’s basic sympathies should be with the content companies, it is axiomatic that they will try to press too far, making everyone in every value chain into protectors of their copyrights (unpaid, of course).

It could be that Triton is so intertwined with the pirate websites that these questions of proper restraint do not arise. Triton does not appear to have a website, a fact which in itself, in this Internet age, creates doubt that it is a legitimate operation. On the other hand, this case could shape up as the next big one on just how we police, or don’t police, the copyright system.

Clipart of Triton from Florida Educational Technology Clearing House.