Please, for the love of counsel, do not use moments like these to advertise your service's viability for the distribution of copyrighted materials.
"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
- Justice Souter, writing on behalf of the Supreme Court of the United States in MGM Studios, Inc. v. Grokster, Ltd.
Great point. It's worth noting that Turtl is a storage tool, not a means of distribution. The article is not promoting infringement, but instead gives an overview of how it's just not an issue with Turtl, because Turtl has no knowledge of the data being stored.
Unless you are using it as an example of how your solution works differently. Which they are.
I don't see anywhere that they are claiming their business is for copyright infringement, in fact, it doesn't seem like it's for mass distribution at all unless you give out your key, and then you just defeat the point of the service.
They are not claiming you should use it for infringement. They are however advertising that it works great for infringement. "That’s how [they] like it"
It doesn't really matter what you or I think anyway. If it came down to being sued by a copyright holder, a blog post like this is definitely not going to help their case.
Of course it's not going to help; but mostly because humans are driven by emotion.
Sharing copyrighted material is not a crime unless is an illicit sharing, that is, when you do not hold a license that allows you to do so. So there are many exceptions such as: when you download a song that explicitly allow copies for any of your own devices; the same applies when you are the copyright holder, or when the license does not cover the country where you live.
It's clearly positioned as an alternative to a tool that prevents copyright infringement. I don't think it is obvious that their intention here is not to present an alternative that facilitates infringement [0]. It seems like they are even proud of that [1].
[0] I am not saying it is good or bad, right or wrong.
Disagree. They are simply stating a consequence of the design of Turtl: it's not possible (or not knowingly possible today) to understand if the end user is sharing copyrighted material. I don't feel that this is a point "feature" - it applies to any and all content by design and the intent is not therefore to provide a safe harbor of illegal material.
Some people are looking for data protection in the cloud (trading the risk for the convenience). If companies like Turtl or SpiderOak didn't exist myself, and many others, would be forced to rely on similar solutions that are self-hosted. Is that intent? I don't think so. That would imply me locking my vehicle or house at night is some sort of indicator of nefarious activity.
What really annoys me is that people go off the handle about intent and fall back to "the law" being the overriding position in these sort of arguments. Bull shit. I have content I've created that I don't want to share with the world. I shouldn't have any shame or feeling of guilt associated with protecting my assets (digital or physical).
"Read between the lines" - give me a break. I hope that's not everyone's first perspective when they read positions as such. It's that line of thinking that's shifting us to a "guilty until proven innocent" mentality of usage of the Internet.
"Everyone's" first perspective is not what should matter to you if you're evaluating legal risk; which is the context of the advise being offered here. When a civil suit is brought against, you, the standards of proof are entirely different than criminal, and these standards are ignored to the author's peril when constructing a message like the one linked here.
To get specific, when someone brings a civil suit against you, the first bar they must pass is relatively low. Once they have passed this bar, they can wrap you up in a very expensive lawsuit for a very long time. I know because I've been in this circumstance for the last four years. Before an actual trial, you get the opportunity to challenge the suit in a variety of ways. A judge gets to decide whether the plaintiff's complaint passes the tests for your challenge. If they do, the trial proceeds, and ultimately you end up in front of a jury.
This is the part where you're gambling -- with huge sums of money at stake -- when it comes to copyright. It doesn't matter if "everyone" decides to read between the lines; it only matters if the selected jury does. That is a gamble of epic proportions. Both lawyers are jockying to select a jury that they feel will fall on their side of the case, but keep in mind that the standard of proof in civil trials is a "preponderance of evidence", not "beyond reasonable doubt".
And that seems to be the unfortunate truth. Something that has no direct intent can be positioned such that it's creators or users end up in a legal quandary. I don't see how that can move forward in a positive manner - the question is what is questioned next?
It seems as though only actors which are threatened by true privacy have a position, and that position includes significant wealth, political power and greed. Those actors set a precedent based on already won battles which don't seem to revolve around facts but, again, money and power. Everyone else is then left to spend "huge sums of money" to defend a position that was never unconstitutional in the first place.
This is true but the opinion in MGM v. Grokster is pretty clear:
You risk being held liable for contributory infringement if you advertise infringement as a possible use for your product.
There really is no other way to read that case, and despite technical differences between Ginsberg (really, really bad) and Breyer (really, really good), all 9 justices on the court agreed with that basic idea. Advertise infringing uses? Get held liable. What this means is one really should shy away from saying things that may be taken as advertising infringing uses.
"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
- Justice Souter, writing on behalf of the Supreme Court of the United States in MGM Studios, Inc. v. Grokster, Ltd.