Moon’s lawyer did not respond to Ars’ request to comment.
Will court uphold “dubious” ruling?
Greer’s case will be revisited by the lower court, giving Greer a second chance to strike back at Kiwi Farms. Goldman said that a victory for Greer still seems unlikely, though, because the appeals court’s “dubious” ruling appears to be inconsistent with copyright law, at least as Goldman has “taught the subject for 25+ years.”
According to Goldman, the appeals court needed to defend its definition of “encouragement” more “thoroughly” because it appeared that the court “conflated” two legal standards and “messed up long-standing contributory copyright infringement principles.” Goldman wrote that under common law, contributory infringement requires a finding that Moon and Kiwi Farms “induce, cause, or materially contribute” direct infringement, not just “encourage” direct infringement, as the appeals court ruled. The court’s reference to “encourage” comes from a different legal test, Goldman wrote, and that inconsistency alone could make upholding the appeals court’s decision messy for the lower court.
Further, Goldman said that the notion that Kiwi Farms posting the takedown notice after failing to remove infringing content amounted to encouragement of direct copyright infringement is flawed. That logic would seemingly suggest that anyone hit with a copyright claim who posts a notice could be held liable for encouraging infringement.
“That cannot be the right legal standard, and I am reasonably confident no other court would reach that conclusion,” Goldman wrote.
Goldman suggested that the court was stretching copyright law to punish Kiwi Farms for its mocking behavior, which he said makes the ruling a “dubious precedent on all points.” He warned that people “should be careful celebrating copyright’s censorial powers.” Though “few people would lament” Kiwi Farms’ demise, this ruling could lead to censorship of “socially beneficial content.”
“We definitely don’t want more copyright doctrines that facilitate pernicious removals,” Goldman wrote.
This post has been updated to note that Kiwi Farms operator Joshua Moon did not post the Google Drive link to copyrighted materials.