In response to yesterday's post including a link to a YouTube clip of a jazz performance, commenter "Siona Sthrunch" contends that such posts violate copyright law; are hypocritical; undermine the credibility of the blog; and even undermine our commitment to the United States Constitution:

  As I've said many times, everyone knows, or should know, that lawyers posting on Volokh are effectively immune from any copyright suit. It's much too expensive to litigate against a bunch of lawyers. Kerr can freely post from now till doomsday and never fear paying any monetary penalties.
  The only "penalty" the blog suffers from its hosting of Kerr's continual copyright infringement (he posts these kinds of videos periodically) is that it weakens the philosophical underpinnings of the blog's stated commitment to the rule of law and of the constitution. Because Kerr and Volokh both financially benefit from copyright enforcement - seeing as how they both have books that they most emphatically do not put in the public domain - this also makes Kerr's copyright infringement fairly hypocritical.
  Is this clear? Even though noone will sue Kerr (or Volokh for that matter), when Volokh turns around and tries to argue that "the First Amendment protects the Phelps" or that "the Second Amendment protects the individual right to bear arms" he loses credibility. If he can fudge on the copyright clause of the constitution to gain readership, why shouldn't he fudge on other aspects?

  So is Strunch correct that I am guilty of "continual copyright infringement"? Is he right that I am a hypocrite because I am an author trying to profit from the sale of copyrighted materials? (Which reminds me, wouldn't a Computer Crime Law casebook make a wonderful Xmas present? Fun for the whole family!!!) And is he right that posting YouTube links "weakens the blog's stated commitment to the constitution"? These are three pretty serious accusations — and ones "Strunch" and others have made before, at least in some form-- so I thought I would take a closer look.

  First, let's examine the question of substantive copyright law. Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file? Copyright is not my area, so maybe my legal analysis is way off. But my sense of the answer is "probably not." The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, "One infringes contributorily by intentionally inducing or encouraging direct infringement." Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.

  The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I'm probably not liable. First, I don't think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to youtube.com and search for "cantaloupe island" and this clip is the first thing that pops up.

  Given that, I don't think my linking to the file is a "material" contribution to any infringement. Yes, my link singled out the widely known clip for its musical excellence; but I see that as pointing out which of the widely-known clips on YouTube is musically strong, not doing the work of locating and pointing out the infringing clip. Given that, I don't think linking to it materially contributed to any infringement: a YouTube link in this context strikes me as more like the link in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) than the link in Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).

  Second, I'm not sure I have the knowledge required for contributory infringement. The cases here are super-murky, but they seem to suggest that "knowledge" is not satisfied by a decent likelihood, but rather appears to require a pretty bright "red flag" showing that it is essentially certain (in light of the uncertainties of ownership, fair use, and the like) that conduct is leading to unlawfully infringing activity. Do I or should I have that?

  Here's my relevant state of mind. First, I'm pretty sure Capitol Record owns the copyright to the clip. When I first saw the clip on YouTube a few months ago, I recognized the performance from the CD I have of One Night With Blue Note (an authorized copy, natch) and figured there must be a DVD out there, too. I then found the DVD and purchased it from Amazon, and indeed can confirm that it's the same performance. I'm also guessing that the posting was not authorized: The file was posted by a user with the screenname "drummer123," who has not posted anything else on YouTube, and I doubt Capitol Records would post a clip in that way.

  I also doubt that most uses of the clip would count as fair use, given that one full song (out of a 10-or-so song DVD) is posted. On the other hand, fair use is an inherently murky four-factor test, and it depends in part on factual settings that I don't know. I don't know how many people are following my link and in what circumstances. My jazz posts usually draw about 2 comments (other than those about copyright infringement), and I don't know how many folks will click on the link and watch enough of the clip to be clearly beyond fair use. As I understand it, I need to know (or being in a position where I should know) that I am actually causing copyright infringement to occur to be liable for contributory infringement. See Perfect 10 v. Amazon, 487 F.3d 701, n.13 (9th Cir. 2007). Is my state of mind enough to establishing the knowledge requirement of contributory infringement liability? I've looked at a bunch of the cases, and I'm not really sure. It might be, but I'm not sure.

  In sum, I think I'm probably legally in the clear because I don't think the link to such a publicly and widely known clip is a material contribution to infringement in those circumstances. And if it is, there's also a debatable issue of if I have the requisite knowledge to be liable. As I said, though, this is not my area. I didn't mean that as false modesty: Seriously, this ain't my area. (I follow criminal copyright, but contributory infringement is an issue of civil copyright liability rather than criminal copyright law.) So if I'm wrong, let me know.

  Finally, am I being hypocritical by posting these links, apart from the legal questions? And what about the VC's commitment to the United States Constitution, and to the Republic for which it stands, E Pluribus Unum? Here, I think I'm in the clear, too. I don't think I'm being hypocritical, as I don't think I'm somehow disrespecting Capitol Records' rights. My post to the YouTube clip included a prominent link to where readers can purchase the DVD, and it highly recommended the DVD, as well. I myself have purchased authorized copies of the music twice: first on CD, and then on DVD. Given that, I don't think I'm being hypocritical by somehow disrespecting the notion that authors and their agents should receive compensation for their works.

  And what about the Constitution, enacted by We the People to form a More Perfect Union? To be candid, I don't see how this issue implicates respect for the Constitution. Yes, the copyright laws were enacted pursuant to the Constitution's grant of authority found in the Copyright Clause. But every federal law was enacted pursuant to some affirmative grant of power found in Article I. (Granted, the courts often don't act like it, but I'm tellin' ya, it's totally true.) So compliance with copyright laws doesn't really raise a question of respect for the Constitution, at least unless we want to take the view that compliance with any federal law raises such a question. In any event, given that I don't think my link violates the copyright laws, I am happy to say that the Constitution is getting my full respect either way.