Mark Cuban's Wrong: Porn Filtering On YouTube Doesn't Mean It Loses Safe Harbors

from the porn-ain't-copyright-infringement dept

Thu, Jul 3rd 2008 2:33pm — Mike Masnick

Mark Cuban has a weird obsession with trying to convince people that YouTube is illegal, despite plenty of evidence to the contrary. His latest discussion on the topic is a real stretch. In response to the bad ruling that gives YouTube log files to Viacom, Cuban is saying that Viacom can now wipe out Google's DMCA safe harbors by showing that the company filters porn.

This is simply incorrect. The DMCA safe harbors do not claim that if you filter any material you must filter it all. Filtering out porn is a different beast than filtering out infringing content. You can tell that porn is porn simply by looking at it. But you cannot tell if content is infringing just by looking at it. It could be put up there on purpose by those who own the copyright. It could be fair use. It's not as simple as just saying that because YouTube removes porn it loses its safe harbor provisions. Also, while not specifically concerning the DMCA, other lawsuits involving the similar safe harbors in the CDA have found that intervening with content on a site does not mean that the safe harbors go away. Having knowledge that some content is porn is quite different than having knowledge of what content is infringing on someone's copyright.

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Filed Under: cda, dmca, filtering, mark cuban, safe harbor
Companies: google, viacom, youtube

29 Comments

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sehlat, 3 Jul 2008 @ 2:58pm

Hardly. Google for Sevigny and "Brown Bunny" for a simple example. With on-screen oral sex, it hardly matters whether the actress is Chloe Sevigny or Jenna Jameson, but the former is apparently NOT porn, while the latter is.

But you can't just tell by looking.
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- Anonymous Coward, 3 Jul 2008 @ 3:43pm
  
  Re:
  Errr... what does google have to do with this? Can you find Sevigny's scene on YouTube?
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- Brooks, 3 Jul 2008 @ 3:47pm
  
  Re:
  Um, what in the world? Are you saying that because that scene is on YouTube, YouTube allows porn, and that therefore... I'm not sure what? Or are you saying that because that scene *isn't* on YouTube, that YouTube filters things in addition to porn, and that therefore Cuban's DMCA argument holds more water than TechDirt indicated?
  
  Or were you off on a wild tangent, musing on the whole "I know it when I see it" definition of porn, completely disconnected from the article at hand? If so, the concept you're missing is called "context" -- just because a scene is pornographic doesn't mean the movie containing the scene is. Likewise in that a porn flick that has a scene with fully clothed people doesn't instantly become not-porn.
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  - Jason, 4 Jul 2008 @ 1:22am
    
    Re: Re:
    I don't know that I disagree with your position, but your supporting point that context separates art from porn doesn't seem to apply to a 00:01:28 clip on YouTube.
    
    As far as the context argument goes, it's really more, "I know it when I don't see it." YouTube would have a strong tendency toward making porn out of art.
    
    I can sort of see where there's significant detail and the implication of a broader relevant story even within a truncated clip. However, the effect for the porn-consumer watching this truncated art is just that it's much easier to suspend reality and get more realistic kicks.
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Anonymous Coward, 3 Jul 2008 @ 3:43pm

lose the apostrophe.
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- DittoBox, 3 Jul 2008 @ 4:11pm
  
  Re:
  Two short points: Mark Cuban may in fact actually possess a "Wrong." We do not know.
  
  Second, if you're going to dish out grammatical advice at least make yourself seem less a fool on such issues by capitalizing your own damn sentence.
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  - David, 3 Jul 2008 @ 4:19pm
    
    Re: Re:
    Losing the apostrophe would lead to 'Mark Cubans Wrong'. Which doesn't make any sense. It's a contraction for 'Mark Cuban is Wrong'. I don't know if it's allowed to contract a phrase like that, but if not then losing the apostrophe makes it worse. Should be 'Mark Cuban is Wrong' in that case.
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    - Some guy, 3 Jul 2008 @ 4:32pm
      
      Re: Re: Re: umm..
      I believe the intent of the headline was to use "Wrong" as a noun, which means the apostrophe is just fine as it's possessive, and not a contraction of "Mark Cuban is wrong". Thanks for playing.
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      - Joel (profile), 14 Dec 2014 @ 5:37am
        
        Re: Re: Re: Re: umm..
        Do they no longer teach grammar in this country? The original poster is correct - lose the apostrophe AND the 's'. Mark Cuban is wrong. Those suggesting the possessive in this case are clueless and should learn more about their own language before weighing-in on such matters.
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evgen, 3 Jul 2008 @ 4:07pm

Filtering infringing content is less of a value judgement than filtering porn
An additional problem faced by this simplistic version of Justice Stewart's dissent regarding obscenity ["I'll know it when I see it", Miller v. California] is that "pornography", similar to "obscenity", is a a sort of value judgement. Are Mapplethorpe's pictures pornography or art? Try defining "pornography" in a phrasing that is without ambiguity and you can see how it is actually easier to define copyright-infringing content than to define pornography.
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Anonymous Coward, 3 Jul 2008 @ 4:44pm

As if cuban has any cred
pfffft
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Jason, 3 Jul 2008 @ 4:45pm

Streetball
It's the basketball nut showing through. Whether winning or losing, he just has to talk trash.

I like Hulu a lot, and it keeps getting better. I don't-even-notice-so-as-to-be-able-to-ignore Cuban's antics.
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Anonymous Coward, 3 Jul 2008 @ 4:46pm

The title is correct in any manner. What I am most concerned about with this article is the department from which it came. Does ain't have an apostrophe? ;-)
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- Jason, 3 Jul 2008 @ 4:55pm
  
  Re:
  Umm...search is your friend. I recommend a browser with custom pluggable search boxes and tabbed browsing. That way you can be almost as lazy as this coward, but no one will ever know.
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Charles, 3 Jul 2008 @ 4:54pm

Mark Cuban is like the meathead who says something without knowing if it's true, is told that he's wrong, but insists that he is right.

Are we to believe that Mark is an expert on Internet video because he sold Broadcast.com to Yahoo? What an valuable acquisition that worked out to be for Yahoo.
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- Jason, 3 Jul 2008 @ 4:59pm
  
  Re:
  @Charles,
  Strike like.
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Grammar Nazi, 3 Jul 2008 @ 4:54pm

Mark Cuban's wrong because he's wrong
Does that help?
It's not so hard to learn correct use of the apostrophe, is it?
Its use is determined by its context (note that the apostrophe is NOT used in the possessive form of "it").

eg
My grandfather's dead - my grandfather is dead - he'd better be because we buried him yesterday.
My grandfather's cat's dead - the cat of my grandfather is dead - we put him in the coffin with my grandfather so he's ("he has") probably suffocated by now.
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- Joe Momma, 3 Jul 2008 @ 5:26pm
  
  Re: Mark Cuban's wrong because he's wrong
  Is this article about Mark Cuban & YouTube or is this thread about grammar? Did I miss part of the article? I only read something about Mark Cuban and didn't see anything else.
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Douglas Karr, 3 Jul 2008 @ 5:07pm

The Accidental Billionaire
Mark hates everything that might involve him not getting paid for it.
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Ex-Mrs. Cuban, 3 Jul 2008 @ 5:12pm

He Is An Anus
Mark Cuban is a left-wing anus, who, like most left-wingers, wants to control your life. He is a king size turd.

What comes out of his mouth is the same stuff humans flush down the toilet everyday.
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ryan, 4 Jul 2008 @ 12:11am

Mark Cuban has an axe to grind
Mark Cuban has an axe to grind with youtube. Those who have been following him for a while have noticed him pooping on Youtube for nearly 2 years now.

I think ultimately he's highly jealous of youtube - his 'broadcast.com' got bought for big bucks, but it was a total waste of money on Yahoo's part. The site doesn't exist, it's brand went nowhere and was ultimately a real failure, despite the huge cashout that for some reason makes Mark Cuban a "learned commentator".
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v8o$i(c;e12/, 4 Jul 2008 @ 4:47am

Mark Cuban is pretty much a running gag, especially here in dallas, silenced only by our shame in having him as a resident and owner of the mavs. He is a shining example of how money does NOT equate class. Or maturity. Or even hygiene, for that matter. His opinions of YouTube would be far less concerning, were it not for his ability to finance a public display of his ranting and whining. He's just angry because someone posted footage there of him soiling himself.
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Michael C Taylor, 4 Jul 2008 @ 9:20am

I know it when I see it...
What is the definition of Pornogrophy?
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Lol Wut, 4 Jul 2008 @ 2:04pm

Happens every 90 days
I set my watch to Mark Cuban's "unique" ideas and remarks of how little he actually knows.

As evidenced by this idea, it looks like Mark Cuban ran out of A.D.D. meds again.
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steveking, 7 Jul 2008 @ 11:35pm

YouTubeRobot.com today announces YouTube Robot 2.0, a tool that enables you to download video from YouTube.com onto your PC, convert it to various formats to watch it when you are on the road on mobile devices like mobile phone, iPod, iPhone, Pocket PC, PSP, or Zune.

YouTube Robot allows you to search for videos using keywords or browse video by category, author, channel, language, tags, etc. When you find something noteworthy, you can preview the video right in YouTube Robot and then download it onto the hard disk drive. The speed, at which you will be downloading, is very high: up to 5 times faster than other software when you download a single file and up to 4 times faster when you download multiple files at a time.

Manual download is not the only option with YouTube Robot. You may as well schedule the download and conversion tasks to be executed automatically, even when you are not around. Downloading is followed by conversion to the format of your choice and uploading videos to a mobile device (if needed). For example, you can plug in iPod, select the video, go to bed, and when you wake up next morning, your iPod will be ready to play new YouTube videos.

Product page: http://www.youtuberobot.com
Direct download link: http://www.youtuberobot.com/download/utuberobot.exe
web-site: http://www.youtuberobot.com
E-mail: support@youtuberobot.com
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mark murrell, 10 Aug 2008 @ 10:27am

Baseball
I would rather watch baseball than Porn, http://www.cubanandthecubs.com
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Jenny, 2 Oct 2008 @ 12:22am

http://leeannejaud.pictiger.com/albums/42405/16939866/
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- blah, 8 Jan 2009 @ 9:01am
  
  Re:
  see u at lunch
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duh, 8 Jan 2009 @ 9:00am

nothing
blah
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