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specify any circumstances in which one party is liable for the infringing acts of another.”

There were findings of secondary copyright infringement, but those were common law cases which had developed through courtroom practice. They do not apply to criminal copyright cases, which rely on laws made by Congress. They were not violations spelled out in the law and there was no legislation or statute which underpinned the findings. The difference was key — since 1812, the US had worked on the principle criminal law had to be set out in legislation so the public could be considered to have been fairly warned over what was and wasn’t law-breaking.

The Megaupload case, even if heard in civil courts, was unlikely to succeed, they found. Falzone and Granick said there was an understanding that secondary liability lay with those with control over a direct infringer, who knew of the infringement and materially contributed to it. Copyright owners had long argued this extended to companies which supplied technology that allowed copying.

The Supreme Court dealt with the question in 1984 when ruling on the use of Betamax video recorders. Universal Studios had claimed “a manufacturer of video cassette recorders was liable for infringement based on copies of television shows and sporting events its customers made using the device”. The Supreme Court rejected the argument drawing those producing technology into liability for wrong-doing committed with the technology. It revisited the question in 2005 in MGM Studios vs Grokster, a successor to Napster in P2P filesharing but also an advance in allowing users direct sharing rather than transiting files through a central site. In that case, wrote Falzone and Granick, the Supreme Court found those offering file-sharing services were liable for infringing copies when it could be shown the services encouraged unlawful copying. They wrote: “The government’s indictment, however, lays out a case of inducement under Grokster, pointing to emails and other evidence that the principals knew and encouraged infringement by employees and users alike.”

The problem, they said, was whether it was possible to use 2005 civil law to create criminal liability. There were cases already under appeal in US courts which had found it was not possible because to do so would create a situation which was “vague and uncertain”, “violating due process of law”.

To further complicate the FBI’s case, the Digital Millennium Copyright Act was a get-out-of-jail-free card for online service providers, as long as they didn’t go out of their way to encourage infringement and made sure any violations were dealt with as quickly as practical. Recent court rulings had added to the card’s effectiveness, finding general knowledge of infringing material did not remove the “safe harbour”

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