Brief In Viacom/YouTube Trial Tries To Rewrite The DMCA

from the draining-the-safe-harbors dept

Thu, May 13th 2010 10:59am — Mike Masnick

As the Viacom/YouTube trial moves on, it should come as no surprise that a bunch of entertainment industry folks filed briefs in support of Viacom. They're going to protect their own, even if it means breaking a fundamental key that makes the internet useful (something that will come back to haunt them). Most of the filings echo the twisted claims of Viacom, such as the ones we recently picked apart, based on the totally unsubstantiated claim that Google somehow has a better idea of what's infringing than the copyright holder. A finding that agrees with that would be a massive rewrite of fundamental liability principles.

However, there's one filing that people keep sending in over and over again. I was going to avoid commenting on it, but it really is so ridiculous and so factually challenged, that it needs some sort of a response. It comes from the Washington Legal Foundation, a group that claims it's a champion of free market principles, limited government and individual rights... but then has regularly supported government granted monopolies in the form of copyright that go against the free market and individual rights. Sometimes, you get the feeling that any DC-based "think tank" organization actually stands for exactly the opposite of what they put on their marketing material.

WLF's filing focuses on the DMCA safe harbor questions in the case:

Like any good attempt to mislead, it starts out accurately. The DMCA was, very much, intended to fight copyright infringement online. But then it begins to subtly rewrite history in a dangerous way. Let's start with this line:

The DMCA was crafted to accommodate the concerns of copyright holders as well as the interests of Internet service providers. Specifically, Congress sought both to protect the intellectual property rights and to limit the liability of innocent service providers. As the DMCA makes clear, Congress believed these twin goals could best be accomplished by encouraging cooperation.

Technically... true, but extremely misleading. It's true that it was designed to "accommodate" the concerns and interests of both parties, but that sentence suggests that both sides came together to work out a happy deal for both. That's not the case. The DMCA was written very much for the copyright holders (hell, it was basically written by the industry). It was because of that, the ISPs then freaked out, when they realized that legislation written entirely by the industry would almost certainly put a ridiculous liability burden on ISPs. So they started making noise and complaining. Because of that, the DMCA's safe harbors were put in. That was the only way to get the ISPs to go along with the deal. This wasn't a case of the copyright holders and ISPs working together to come up with a solution. It was the copyright holders pushing for as much as they could get, and then giving the ISPs a safe harbor so that the bill would pass.

... the DMCA was neither adopted nor intended to encourage service providers to exploit the existence of the safe harbors by designing businesses based on an ability to avoid liability.

Frankly, that statement is obnoxious. Perhaps people in Hollywood (and self-contradictory DC think tanks) think that folks in Silicon Valley are purposely looking for legal loopholes to build businesses based on avoiding liability, but that's flat out ridiculous. Companies are building services because they find them useful and compelling. They're not "exploiting" safe harbors. They're recognizing the core reason why safe harbors are there in the first place: because liability should be place on the party who actually infringes. That should be common sense, but because it's clearly not, it needs to be spelled out in the law.

Relying on highly-specific decisions, YouTube and its amici seek to place essentially the entire burden on the copyright holder. This approach cannot be reconciled with Congress's clearly stated intent to "preserve strong incentives for.... cooperat[ion]," ... nor with the structure of the statute Congress enacted. In essence, YouTube asks this court to convert a calibrated series of shared obligations into a single "takedown" notice requirement placed solely on copyright owners.

Wow. Wow. This is just downright misleading. No one has ever said that the entire burden is placed on the copyright holder. It's blatantly wrong to suggest that. The point that Google and others have made is simply that making a determination of whether or not something is infringing is not something that can be made without knowing certain facts that the copyright holder knows (i.e., whether or not the holder has authorized the works). Thus, the most effectively know whether or not a work is infringing -- the requirement in the DMCA for content to be taken down -- is through a takedown notice. Once again, like Viacom and its supporters, the WLF seems to think that Google has a magic ability to understand Viacom's intentions and authorizations, when even Viacom's own partners have admitted that Viacom changed its authorization rules every few days and it involved a book the length of Crime and Punishment, which was not shared with Google.

Not only is such a limiting interpretation belied by the DMCA, it is undermined by the fact (as illustrated here) that a takedown notice often provides little or no protection to copyright owners.

Again, I'm left shaking my head in disbelief. Did they really claim that? The ability to pull content down without any judicial review whatsoever (which seems to go against basic First Amendment principles) provides "little or no protection"? Apparently, the folks at WLF haven't been paying attention to how widely the DMCA is used.

Under its interpretation of the DMCA, YouTube would be free to set up a business that knowingly infringes (and encourages and induces infringement of) copyrighted works on a massive scale by copying, publicly performing, displaying and disseminating those works. Under the construction of the DMCA it urges on this Court, YouTube could actively encourage massive infringement and still claim DMCA protection simply by after-the-fact (limited response to takedown notices.

Here, WLF is just making stuff up. Each of those points is wrong. If it has direct knowledge of infringement, then it violates the DMCA. If it induces and encourages infringement, it violates the Grokster standard for inducement. WLF knows this. YouTube knows this. No one denies this. I don't know why WLF is claiming otherwise, other than that it can't make its argument in a factual manner. The problem is that WLF is pretending that having general knowledge that some stuff infringes means that it can induce. No one is arguing that.

Simply put, Congress never intended such a patently one-sided result.

Well, first of all, that patently one-sided result is a figment of the imagination of the author. YouTube is not even close to arguing that it should be free to induce infringement. In fact, under the Grokster decision, everyone knows that inducement is infringement. Why WLF would pretend otherwise is beyond me.

But even worse, it's somewhat guffaw-inducing for anyone to suggest that any interpretation of the DMCA is one-sided in favor of service providers. The entire law was written in the interests of copyright holders, and it's massively one-sided towards them. The one balancing factor is the safe harbors. What WLF is trying to do here is to focus solely on those safe harbors -- the part designed to "balance" the DMCA, and pretend that's all there is to the DMCA, and that this interpretation designed merely to make sure that liability is properly placed on those doing the infringing is somehow one-sided. This is highly disingenuous.

There are plenty of interesting legal arguments on both sides of this case, but this particular filing is an attempt to rewrite history and the law in a manner that makes little sense and would wipe out a key principle in applying liability to those who are actually responsible. Instead, it tries to pretend that service providers have the magic ability to just know what's infringing and what's not. The inevitable results of increasing service provider liability in such a manner would be an incredible chilling effect on all sorts of user-generated platforms and service providers -- a result Congress most certainly did not intend.

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Filed Under: copyright, dmca, liability, safe harbors
Companies: google, viacom, washington legal foundation, youtube

106 Comments

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Anonymous Coward, 13 May 2010 @ 11:11am

when i read your comments, i understand why you dislike dmca so much, because you entire dont understand it. you have never stood in the shoes of a copyright holder, you have never seen the futility of filing dmca after dmca only to have content reappear moments later on the same 'user submitted' service, and you just dont seem to understand that it takes a second to infringe, and days, weeks, or even years to stop the infringement, often only for seconds before it begins again. if anything, this amicus brief most clearly states the problems of the way companies like youtube skirt their liability by placing an incredible burden on the rights holder an by accept absolutely no responsibility of their own (at least what hasnt been forced upon them by the courts in the past).
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- Anonymous Coward, 13 May 2010 @ 11:20am
  
  Re:
  Sounds like you need a stronger law, but the one that exists today requires you to take "day, weeks, or even years to stop infringement" You should not be able to change the existing law without passing a new one.
  
  Oh and passing a tougher law might be difficult, the current dmca is the best money could buy.
  [ link to this | view in chronology ]
- Dementia (profile), 13 May 2010 @ 11:32am
  
  Re:
  Actually, Mike IS a copyright holder. So I think its safe to say he has stood in their shoes. He has also seen his content be infringed, but rather than lose his mind over it, he found a way to make it work for him, so submitting takedown notices isn't something he worries about. Maybe there is a lesson to be learned there?
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  - Anonymous Coward, 13 May 2010 @ 11:37am
    
    Re: Re:
    sorry, that just isnt the case. mikes material here is about worthless the minute its published, it isnt something of long term value (except perhaps as comedy material). he doesnt protect it exactly because he knows it has not true market value the second it goes public. it isnt like people are lining up to buy copies for his 3 year old blog posts, are they? so sorry, mike isnt a copyright holder in the sense that he doesnt have anything really worth protecting, it is only copyright by legal default, not through any desire on his behalf.
    [ link to this | view in chronology ]
    - :Lobo Santo (profile), 13 May 2010 @ 11:41am
      
      Re: Re: Re:
      Coward, that was a well written piece of disguised ad hominem. Got any logical arguments?
      [ link to this | view in chronology ]
      - Anonymous Coward, 13 May 2010 @ 11:44am
        
        Re: Re: Re: Re:
        the point is there. when mike hits publish, the value is drained out quickly. how many month old techdirt posts do you re-read every day? none (unless forced to by mikes 'we have already proven' links, which often prove little). the value isnt there. we still watch 40 year old tv shows and enjoy them. very few people are cuing up to read 10 year old masnick posts. there is your proof.
        [ link to this | view in chronology ]
        
        :Lobo Santo (profile), 13 May 2010 @ 11:49am
        
        Re: Re: Re: Re: Re:
        So you're saying there's no value to be found in an often updated blog with articles pertaining to present day events which is indexed in a chronological manner?
        
        So... you're just short-sighted then? That's like saying old newspapers are worthless. Which they are; unless, of course; you'd like to find out what was happening back then.
        
        (And given the present state of copyright, it'll still be copyrighted material in 150 years when it becomes a valuable historical resource.)
        
        So, again: Have any logical arguments?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 11:53am
        
        Re: Re: Re: Re: Re: Re:
        no. i do not. you're all a bunch of thieves. respect copyright laws. they are the most important laws ever.
        [ link to this | view in chronology ]
        
        interval, 13 May 2010 @ 12:43pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Ha ha ha!!! Its a joke, I get it. For a second there I thought Coward was earnestly trying to argue a stupid point.
        [ link to this | view in chronology ]
        
        Free Capitalist (profile), 13 May 2010 @ 12:43pm
        
        Re: Re: Re: Re: Re: Re: Re:
        no. i do not. you're all a bunch of thieves. respect copyright laws. they are the most important laws ever.
        
        If this is someone trying to steal TAM's credibility: you're pumping a dry well there, buddy.
        [ link to this | view in chronology ]
        
        Brian (profile), 13 May 2010 @ 1:56pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Lol, go away troll
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 11:58am
        
        Re: Re: Re: Re: Re: Re:
        nope, i didnt say that. the value of individual posts here is lost almost as soon as they are posted, and for the most part as they scroll of the bottom of page 1. people are not really that interested in reading someones old opinions. newspapers are consulted on occasion, but for the most part even old newspapers filled with facts and information are rarely consulted. yet, tens of thousands (if not hundreds of thousands) of people watch, purchase, or rent older movies every day. heck, mr masnick himself gets movies from netflix, and all of those are more than a couple of days old. basically, the value of a random masnick post isnt enough to merit protection, there isnt enough demand to make it worth protecting. in his own view of things, the minuscule value of promotion from his material being stolen is worth more than the value of protecting it. its why he doesnt understand the positions of rights holders that have a product of value, because their needs are very different from his. the brief as presented articulates that position very well, but mike appears unable to grasp it, attempting over and over to fit it back into his self defined world view.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 12:02pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Speaking of self-defined world views . . . .
        [ link to this | view in chronology ]
        
        Simon, 13 May 2010 @ 1:08pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Rupert Murdoch disagrees with you.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 1:15pm
        
        Re: Re: Re: Re: Re: Re: Re:
        So all the old movies, tv shows, and newspaper articles that no one watches have no value?
        
        If Mike were to compile a book of his blog posts, and he sold even 1 copy...does that make his writing has value? Or does it only have value if someone reads the book twice? Or do you have to sell a certain number of copies before a writer's words have value.
        
        Could you please define this for us...as you seem to be an expert on copyright law and when it should and should be applied to copyrighted works.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 2:02pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        So all the old movies, tv shows, and newspaper articles that no one watches have no value? Answer NO!
        
        The TV is full of them, they are called "re-runs" and once viewed they have no further value. That is the reason that I cut my cable subscription down to "basic" level, and if Hulu were available to me I would cut cable TV entirely. Their business model is "try to squeeze money out of crap that has no value". Why do you think that Face Book has grown to the size it has? The "soap operas" of peoples private lives has become more interesting than the TV soap operas and reruns.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 2:25pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        you guys are off on a bizarre absolute search again where none exists. the average blog writings dont have enough value versus the cost to protect them. when you figure that a horrible lawyer form letter and dmca notice could run hundreds of dollars, there has to be a valid reason to spend them time and money to protect your copyright. mike has chosen instead to accept the 'advertising value' of having his work lifted, rather than trying to control it. it doesnt mean his copyright is stronger or weaker than anyone elses legally, just financially not worth the efforts to protect. the value isnt set in law, it is set in the owners mind. some blog writers send dmcas for a single unauthorized use. in their mind, their work has more value to them. it isnt legal value, its how they value it.
        
        (rare paragraph break)
        
        i think you are just baiting at this point anyway. you understand the idea, a movie capable of generating millions of income makes it economically viable to enforce the copyright. a single blog post from a 'troubled' mba may not be. it is a pretty simple idea, stop trying to make it complicated for nothing.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 3:08pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Don't be silly, it's completely impossible for a movie to generate millions in income. Piracy is murdering your favorite industry, remember, TAM?
        [ link to this | view in chronology ]
        
        The Groove Tiger (profile), 13 May 2010 @ 3:51pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Actually, it has been proven by studies that movies don't generate any money at all, ever, piracy or not. I got the studies right here with me.
        [ link to this | view in chronology ]
        
        Any Mouse, 13 May 2010 @ 9:21pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I have to ask... What have YOU published that is 'of value'? I would actually say nothing at all. Unless it's fiction, that is. then maybe... but I'd still bet there's no value in it. Value isn't assigned by the copyright holder. Value is a subject quality. We can look at this in terms of real goods, if you'd like.
        
        My car is broken. The parts to fix it are valued by the parts dealer at $250. They aren't that valuable to me. To me they're value is perhaps $100. Since I have the bus to fall back on, I can ignore what the dealer wants and choose a different means of transportation.
        
        As to 'stealing' your copyrighted works? All I can say is 'OMG! theivez are steelin mah thoughtz!'
        [ link to this | view in chronology ]
        
        techflaws.org (profile), 14 May 2010 @ 2:57am
        
        Re: Re: Re: Re: Re: Re:
        the value isnt there
        
        And yet you spend hours of your valuable time commenting on his worthless crap. Schizo much?
        [ link to this | view in chronology ]
        
        fiestachickens (profile), 13 May 2010 @ 11:59am
        
        Re: Re: Re: Re: Re:
        That's... a dangerous point to make. If you're arguing that the value of the material dictates if a person is really a copyright holder?
        
        Can't this be argued the other way? If I deem that music just isn't all that valuable, then it really isn't worth copyrighting and I can go ahead and infringe on it?
        
        You can't have it both ways. Either you have strong copyright laws that apply to everything (big, small, great or stupid), or you have none. Anything in between allows too much wiggle room from either side (and I'd wager that copyright holders would be the ones abusing this...)
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 12:06pm
        
        Re: Re: Re: Re: Re: Re:
        'a dangerous point to make. If you're arguing that the value of the material dictates if a person is really a copyright holder?' no, i am saying that when the material has little or no value, there is no reason for the rights holders to care what happens to it, because holding onto it closely gave them no value anyway. masnick doesnt lose anything if his material is 'stolen', because he loses nothing. it is his own logic about people giving away music. it doesnt make him less of a copyright holder, it just makes it unimportant for him to enforce his rights, and certainly not economically viable to do so.
        [ link to this | view in chronology ]
        
        DH's Love Child, 13 May 2010 @ 12:18pm
        
        Re: Re: Re: Re: Re: Re: Re:
        So tell me, since you're such an expert on these matters, how is Google (or anyone else) supposed to know WHAT the infringing material is without being notified by the owner of that content? Or should they just reject ALL content pending a review by you who seems to know everything?
        [ link to this | view in chronology ]
        
        Tyanna, 13 May 2010 @ 1:23pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I thought that exact thing when I read that. Doesn't this Coward pretty much make the argument Mike is trying to say here.
        
        If the copyright holder has decided they don't want to enforce the copyright on their work, how is Google or any third party to know that without being told?
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        Anonymous Coward, 13 May 2010 @ 2:27pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        its a thing called copyleft, or public license, or share alike, or one of any number of items. heck, meta tag the site with 'gnu public license' or whatever, and away you go. google is in a different situation for their search index, because they dont tend to copy and distribute the content, only link to it. dont confuse youtube with google, its the same company but very, very different situations.
        [ link to this | view in chronology ]
        
        Richard (profile), 13 May 2010 @ 12:19pm
        
        Re: Re: Re: Re: Re: Re: Re:
        and certainly not economically viable to do so.
        
        But I thought that it was the fact that it was not economically viable to defend YOUR rights that was your complaint the difference is only one of degree.
        
        The fact is that given modern technology it is not economically viable to defend any rights.
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        Technopolitical (profile), 14 May 2010 @ 3:49am
        
        Re: Re: Re: Re: Re:
        well put
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        Technopolitical (profile), 14 May 2010 @ 3:51am
        
        Re: Re: Re: Re: Re: Re:
        well put here : "we still watch 40 year old tv shows and enjoy them. very few people are cuing up to read 10 year old masnick posts. there is your proof."
        [ link to this | view in chronology ]
    - Anonymous Coward, 13 May 2010 @ 11:47am
      
      Re: Re: Re:
      http://www.techdirt.com/rtb.php?tid=400
      
      Hmm, his book is sold out...
      Looks like some people payed good money for old blog posts, must not have any value though, you can get it all for free.
      [ link to this | view in chronology ]
    - Anonymous Coward, 13 May 2010 @ 12:00pm
      
      Re: Re: Re:
      Wait? You admit to visting a site that publishes "worthless material" and interacting with a community that, I'll assume, also provides "worthless material"?
      
      Why?
      
      And you still haven't mentioned how this wikipedia article is inaccurate: http://en.wikipedia.org/wiki/Boson
      [ link to this | view in chronology ]
    - Dark Helmet (profile), 13 May 2010 @ 12:38pm
      
      Re: Re: Re:
      "it isnt like people are lining up to buy copies for his 3 year old blog posts"
      
      Holy Christ, Mike, please put together a yearly volume of the blog post, complete with either all or user voted/selected comments and publish it in hard copy. I would gobble that up in a heartbeat....
      [ link to this | view in chronology ]
      - DH's Love Child, 13 May 2010 @ 12:41pm
        
        Re: Re: Re: Re:
        " I would gobble that up in a heartbeat...."
        
        And I would follow in my father's footsteps.
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      - Mike Masnick (profile), 13 May 2010 @ 1:10pm
        
        Re: Re: Re: Re:
        Holy Christ, Mike, please put together a yearly volume of the blog post, complete with either all or user voted/selected comments and publish it in hard copy. I would gobble that up in a heartbeat....
        
        Heh. Would you believe we looked into this? It's a lot more difficult than you would think, given the amount of content.
        
        We may get there, though...
        
        But, yeah, lots of people bought the "Approaching Infinity" series, despite that really just being a "bunch of old blog posts" that apparently have no value, according to one anonymous commenter.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 2:28pm
        
        Re: Re: Re: Re: Re:
        by your own logic mike, they bought the t-shirt, and got the book for free. we both know that.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 2:42pm
        
        Re: Re: Re: Re: Re: Re:
        Perhaps they bought the T-Shirt to fund techdirt because they see value in techdirt and the content and want to help fund future content.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 3:35pm
        
        Re: Re: Re: Re: Re: Re: Re:
        dont get me wrong,the content has value when its fresh, sort of like bread. but just like bread, it gets stale pretty quick.
        [ link to this | view in chronology ]
        
        Nastybutler77 (profile), 13 May 2010 @ 4:52pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        So who determines what content has enough of your so called "value" to warrent a copyright? Where's that line and who sets it? You're such a bafoon to keep making these idiotic arguments that you know to be false. The term someone here used recently is so apt. You're a shilltard.
        [ link to this | view in chronology ]
    - Anonymous Coward, 13 May 2010 @ 2:56pm
      
      Re: Re: Re:
      With passionate comments like these, we're all left to wonder exactly what priceless, precious material you spend your days safeguarding. What exactly did you write/compose/record/shoot that has been so egregiously infringed upon? And why is its value so fragile that any single reposting renders you a pauper? Methinks I spy a failed business model in AC's past...
      [ link to this | view in chronology ]
    - Anonymous Coward, 13 May 2010 @ 4:34pm
      
      Re: Re: Re:
      >it is only copyright by legal default
      
      What the fuck? Haven't YOU been arguing "legal default" for what, every time you have absolutely nothing useful to say?
      [ link to this | view in chronology ]
- :Lobo Santo (profile), 13 May 2010 @ 11:33am
  
  Re: C is for Coward
  Hello coward!
  "when i read your comments, i understand why you dislike dmca so much, because you entire dont understand it. you have never stood in the shoes of a copyright holder, you have never seen the futility of filing dmca after dmca only to have content reappear moments later on the same 'user submitted' service, and you just dont seem to understand that it takes a second to infringe, and days, weeks, or even years to stop the infringement, often only for seconds before it begins again...."
  Duh! Mike has more sense than to try, and likes to take advantage of the free advertising and fans' good will that makes them want to share the thing they really like with other people.
  
  In short, the scenario you're describing is for idiots. If you don't want it to be "infringed" then either keep it to yourself OR come up with an unbreakable copy protection system that doesn't piss of your customers. (Or get smart and learn to use what is happening--and what's going to keep happening (you stupid fucktard) to your advantage.)
  
  Peace n Love,
  -:Lobo Santo
  
  ;P
  [ link to this | view in chronology ]
- Anonymous Coward, 13 May 2010 @ 11:34am
  
  Re:
  Funny coming from the TAM who usually claims that everyone who doesn't like the current laws should just shut up and follow them.
  [ link to this | view in chronology ]
- Richard (profile), 13 May 2010 @ 11:58am
  
  Monopoly
  you entire dont understand it. you have never stood in the shoes of a copyright holder, you have never seen the futility of filing dmca after dmca only to have content reappear moments later on the same 'user submitted' service,
  
  So what do you actually want?
  
  The point is that Mike has dissected this issue and shown that there is no system which allows user generated content at all without placing this burden on the copyright holder.
  
  My conclusion is that what you are actually asking for is to shut down the internet - or at least turn it into a broadcast medium with no user generated content.
  
  In the past rightsholders tolerated lots of infringement because it was not visible. The public nature of online infringement has provoked your Gollum like sensitivity (me precious!).
  
  Please, for the sake of your own mental health, lighten up and move on.
  [ link to this | view in chronology ]
  - Anonymous Coward, 13 May 2010 @ 12:01pm
    
    Re: Monopoly
    IMPOSSIBLE! COPYRIGHT LAWS MUST DESTROY THE INTERNET!!!
    [ link to this | view in chronology ]
  - Anonymous Coward, 13 May 2010 @ 12:51pm
    
    Re: Monopoly
    Or you can make copyright opt in and have a public directory listing all material that could be used to infringe.
    [ link to this | view in chronology ]
  - Anonymous Coward, 13 May 2010 @ 1:02pm
    
    Re: Monopoly
    "My conclusion is that what you are actually asking for is to shut down the internet - or at least turn it into a broadcast medium with no user generated content."
    
    This isn't about infringement, they just don't want any competition, or at least no competition that they don't profit from. They want to make sure that they profit from any content that anyone ever makes.
    [ link to this | view in chronology ]
- R. Miles (profile), 13 May 2010 @ 12:03pm
  
  Re:
  "because you entire dont understand it."
  Actually, I find it's people just like you who don't understand it.
  
  The internet seemed to come out of nowhere and is the blame for everything. People, just like you, tend to forget there are technologies out there which enable the sharing of files.
  
  The problem is not with the internet nor technology. The problem resides on people, just like you, who live by the mantra "pay me to view/use my works or do without". How interesting the internet brings forth this attitude never before seen. Just because Google shows up an image in a search, it's now "the internet's fault"!
  
  People, just like you, are whining jerks who completely forget all the talent used to produce content was obtained from the works of others. Show me a single artist, song writer, author, or any other person in the arts and I'll show you someone who can list names who've influenced them.
  
  But yet, never mind this aspect of the arts. Let's just blame everyone who "steals" because someone loses the 12 cents from the royalties.
  
  Goodness, people just like you don't seem to understand the bigger problem in that people can't afford all the works they want to buy. So with this model, who loses then?
  
  Right.
  [ link to this | view in chronology ]
  - Technopolitical (profile), 14 May 2010 @ 4:01am
    
    But yet, never mind this aspect of the arts. Let's just blame everyone who "steals" because someone loses the 12 cents from the royalties.
    "But yet, never mind this aspect of the arts. Let's just blame everyone who "steals" because someone loses the 12 cents from the royalties."
    
    Glad you admit it is stealing.
    
    Online ,like at lyric sites -- as discussed earlier this week @ techdirt -- it is possible for thousands , tens of thousands , even millions of people to "steal" a copyrighted work.
    
    Do the math. At 12 pennies a pop it ads up to real money for the copyright holder.
    [ link to this | view in chronology ]
    - Anonymous Coward, 14 May 2010 @ 7:41am
      
      Re: But yet, never mind this aspect of the arts. Let's just blame everyone who "steals" because someone loses the 12 cents from the royalties.
      "There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back." - Robert A. Heinlein, Life-Line, 1939
      [ link to this | view in chronology ]
      - Anonymous Coward, 14 May 2010 @ 10:50am
        
        The government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances. Period.
        Congress and the Courts disagree with Mr.Robert A. Heinlein, Life-Line, 1939. So would Thomas Jefferson.
        [ link to this | view in chronology ]
        
        Technopolitical (profile), 14 May 2010 @ 12:36pm
        
        Re: The government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances. Period.
        is is me -- I gotta rember to sign in
        [ link to this | view in chronology ]
        
        Anonymous Coward, 14 May 2010 @ 4:14pm
        
        Re: Re: The government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances. Period.
        [citation needed]
        [ link to this | view in chronology ]
- bigpicture, 13 May 2010 @ 1:02pm
  
  Re: Stone Age point of View
  What Century are you living in? The whole issue is about control? Copyright was an adequate control tool when the means of copying was only in the hands of the special interests rich copyright holders. (Publishers, recording companies etc.)
  
  Now the copying and transfer of all types of information is ubiquitous and in the hands of the masses and they are still trying to apply laws and concepts that originated in the 1600s. Even Governments have to bow to the wishes of the masses otherwise there will be violent revolution. (as opposed to peaceful revolution)
  
  There used to be laws to control alcohol (during the prohibition era) then alcohol sales was controlled by the mob. So then (because they could not control its use by making it illegal) someone got the bright idea to make it legal, control the sales and tax it.
  
  I know the US lives in some sort of media controlled bubble illusion, and to present any ideas that might be interpreted as "socialist" are hard to sell. And just to ignore that "BAILING OUT BANKS" is seen by the rest of the world as PURE CORPORATE WELFARE.
  
  So since the internet is all about information and statistics, why not make copying/sharing legal (like alcohol) and tax it in proportion, and give the taxes collected to the copyright holders in proportion, you know, the same as the bank bail out. If "free" copying stops then no taxes collected and no copyright tax paid. You know a different business model, where people are not legally required to pay for crap, so the producers have incentive to produce what the consumer wants. O what a novel business concept!!!
  [ link to this | view in chronology ]
- Karl (profile), 13 May 2010 @ 1:06pm
  
  Re: TAM
  when i read your comments, i understand why you dislike dmca so much, because you entire dont understand it.
  
  And you are a lawyer, I guess? Or a congressman? Or do you mean "understand" in a more emotional sense?
  
  If the latter, the only reasonable response is "tough titties, sunshine."
  
  you have never stood in the shoes of a copyright holder, you have never seen the futility of filing dmca after dmca only to have content reappear moments later on the same 'user submitted' service, and you just dont seem to understand that it takes a second to infringe, and days, weeks, or even years to stop the infringement, often only for seconds before it begins again.
  
  And you have never stood in the shoes of an ISP or OSP, who has to automagically know what is infringing and what isn't. And you have never stood in the shoes of someone who uploaded non-infringing content, yet had it taken down, merely because someone claimed to hold a copyright on the material.
  
  It takes "days, weeks, or even years" to send a DMCA takedown notice? Right. A few mouse clicks, and YouTube will take down the video without question.
  
  By the way, I like how you put "user submitted" in quotes, as if all those users were just shadow employees of the big YouTube conspiracy.
  
  if anything, this amicus brief most clearly states the problems of the way companies like youtube skirt their liability by placing an incredible burden on the rights holder an by accept absolutely no responsibility of their own (at least what hasnt been forced upon them by the courts in the past).
  
  If anything, it shows that some people expect companies like YouTube to be liable for something they literally cannot control, and cannot be responsible for.
  
  According to YouTube, hundreds of thousands of videos are uploaded daily. Almost none of them will be seen by any YouTube employee. It's impossible to tell, but I'm guessing that about 90% of those videos do not involve copyrighted material from a third party. Of those videos that do, I'm betting that the vast majority of them fall under the Fair Use doctrine (e.g. "keyboard cat" videos).
  
  Yet, YouTube is supposed to know what videos contain illegal infringement, and which do not. Copyright holders are required to send takedown notices to YouTube because that's the only possible way YouTube could know they're infringing. And once they receive that notice, they take down the video immediately - and require the user to send a counter-notice for it to be restored (and unlike the takedown, that's not automatic).
  
  If anything, YouTube bends over backwards for copyright holders. If you "entire dont understand" that, then you're willfully ignorant, and best of luck to you.
  [ link to this | view in chronology ]
  - Anonymous Coward, 13 May 2010 @ 2:48pm
    
    Re: Re: TAM
    "According to YouTube, hundreds of thousands of videos are uploaded daily. "
    
    Over twenty hours of video per minute.
    [ link to this | view in chronology ]
    - Anonymous Coward, 13 May 2010 @ 2:48pm
      
      Re: Re: Re: TAM
      http://www.techdirt.com/articles/20100305/1139318439.shtml (source)
      [ link to this | view in chronology ]
  - Anonymous Coward, 13 May 2010 @ 4:06pm
    
    Re: Re: TAM
    i am not tam but i will answer you anyway. lets stay, shall we?
    
    'It takes "days, weeks, or even years" to send a DMCA takedown notice? Right. A few mouse clicks, and YouTube will take down the video without question.' - nope, i didnt say that. it takes days, weeks, or even years to get a judgement. copyright holders send a dmca notice, the other party says 'not true' and then can spend literally years before a judgement is rendered. worse, the material stays up until there is a judgement against. even a dmca notice can take time, first you have to find the offending material, you have to qualify it, you have to find your exact matching material and identify it as well, fill out a proper dmca (the online one isnt really the way to go for legal reasons, get it delivered, and then they have 48 more hours to process it. if the other party says it isnt infringing, who knows what comes next?
    
    'If anything, it shows that some people expect companies like YouTube to be liable for something they literally cannot control, and cannot be responsible for.' - if youtube was acting as an innocent host, that might be true. but youtube makes their income not on hosting, but on aggregative videos, linking them together, offering options, plays lists, and all sorts of other things. essentially, the are a video site using user generated content, not an innocent host. they can always control the content on their site, they just know that it isnt economically viable to do so. They could easily have 1000 people per shift, 3 shifts, doing nothing but reviewing videos as they are submitted, but that would cost money, and they would honestly end up rejected 50% or more of what is uploaded. further, they could get declarations from the user who submits the material that they own the rights, and get full trackable information about the user (rather than allowing essentially anonymous uploading). they choose not to do this. that is something they control.
    
    'YouTube bends over backwards for copyright holders' - not true at all. without legal action taken, they would still be running full tv episodes, full movies, and clear violating material and, as per your previous comment, that they 'literally cannot control'. please pick one side or the other of an argument, dont try to argue both.
    
    'you have never stood in the shoes of an ISP or OSP, who has to automagically know what is infringing and what isn't. ' - i wont go into it, that would take too long. real isps know who their clients are and can communicate with them if they receive a dmca notice. real honest isps dont continue to host users who get repeated valid dmca notices. they can control it. they dont have to automagically know what is legal and what isnt, but they do have to take steps to remove offending material when they see it, and take steps to limit their own liablity when it comes to repeat offenders, something youtube just doesnt do.
    
    'I like how you put "user submitted" in quotes, as if all those users were just shadow employees of the big YouTube conspiracy.' - as youtube and many other file hosts are unable to identify the true source of their material because of anonymous postings, there is no way for them to prove where the content comes from. it is very well known that some of the largest tube style sites started out by ripping off content and claiming it to be user submitted. if they get caught, they blame the 'rogue employee', which is the digital version of 'two black youths'.
    
    in the end, youtube can control what is on their site, but they choose not to. they choose not to know who their submitters are, and they make the poor assumption that everyone submitting has full rights to the content they are granting a license to youtube for. since they cannot clearly say who gave them the license, they are on pretty weak ground.
    [ link to this | view in chronology ]
    - Anonymous Coward, 13 May 2010 @ 4:46pm
      
      Re: Re: Re: TAM
      Why did you type so much just to say "Wahhhh, due process is annoying and justice is too much work," TAM?
      [ link to this | view in chronology ]
    - DocMenach (profile), 13 May 2010 @ 4:48pm
      
      Re: Re: Re: TAM
      They could easily have 1000 people per shift, 3 shifts, doing nothing but reviewing videos as they are submitted, but that would cost money, and they would honestly end up rejected 50% or more of what is uploaded.
      
      This is completely ridiculous. On what criteria will these employees be able to identify an infringing vs non-infringing use? Not every infringing use is obvious, and many things that appear to be infringing may not be (i.e. When Viacom uploaded clips to youtube).
      
      Also, what about fair use?
      [ link to this | view in chronology ]
    - Nastybutler77 (profile), 13 May 2010 @ 5:02pm
      
      Re: Re: Re: TAM
      Goddamn you're stupid. But you've successfully trolled this post's comments, so kudos to you.
      [ link to this | view in chronology ]
    - Mike Masnick (profile), 13 May 2010 @ 6:48pm
      
      Re: Re: Re: TAM
      without legal action taken, they would still be running full tv episodes, full movies, and clear violating material
      
      Just a quick note to point out this isn't true. From very early on, well before any legal action was taken, YouTube limited uploads to 10 minutes total to deal with that, and, separately, worked on copyright identifying filters.
      
      Facts, details... these things are important.
      
      real honest isps dont continue to host users who get repeated valid dmca notices
      
      YouTube shuts down accounts after 3 DMCA notices...
      
      Facts, details... these things are important.
      
      in the end, youtube can control what is on their site, but they choose not to. they choose not to know who their submitters are
      
      Nothing in the law requires either. On purpose.
      
      Facts, details... these things are important.
      [ link to this | view in chronology ]
      - Technopolitical (profile), 13 May 2010 @ 11:15pm
        
        The entire law was written in the interests of copyright holders, and it's massively one-sided towards them.
        And rightly so. Because Laws are for the benefit of the Victims,, not the criminals-- (if the law has been properly constructed, which is NOT always possible , because of powerful lobbyist who advocate unjust, greedy & often"morally criminal" causes. )
        [ link to this | view in chronology ]
    - Karl (profile), 13 May 2010 @ 7:07pm
      
      Re: Re: Re: Not TAM, maybe
      i am not tam but i will answer you anyway. lets stay, shall we?
      
      Sorry. If it walks like a duck, and quacks like a duck...
      
      it takes days, weeks, or even years to get a judgement. copyright holders send a dmca notice, the other party says 'not true' and then can spend literally years before a judgement is rendered. worse, the material stays up until there is a judgement against.
      
      DMCA takedowns rarely reach the court phase - most users don't even know they can send a counter-noitice. And until the user does, the content stays offline. It usually takes a long time for YouTube to put the video back up, and they won't if the copyright owner contests the counter-notice.
      
      It takes a lot of effort and money to legally contest a DMCA takedown notice - so if a user is willing to go to court to keep a video up, it's very likely that it's not infringement. The reverse is not true; because it's easy to send a notice, copyright holders send them even if the material isn't illegal (e.g. it's fair use). 99% of the time, the content stays offline, infringement or not.
      
      The game is definitely rigged in favor of the copyright holders.
      
      even a dmca notice can take time, first you have to find the offending material, you have to qualify it, you have to find your exact matching material and identify it as well, fill out a proper dmca (the online one isnt really the way to go for legal reasons, get it delivered, and then they have 48 more hours to process it.
      
      Copyright holders only have to go through this process if the "online one" is fought. As I explained above, this is extremely unlikely, unless the user knows it's not infringement and has deep pockets.
      
      if youtube was acting as an innocent host, that might be true. but youtube makes their income not on hosting, but on aggregative videos, linking them together, offering options, plays lists, and all sorts of other things. essentially, the are a video site using user generated content, not an innocent host.
      
      The notion that these services (all user-generated) somehow make YouTube "not an innocent host" is a real leap in logic. How does the ability to make a playlist equate to copyright infringement?
      
      they can always control the content on their site, they just know that it isnt economically viable to do so. They could easily have 1000 people per shift, 3 shifts, doing nothing but reviewing videos as they are submitted, but that would cost money,
      
      Your math is wrong. According to the YouTube page I linked previously, 24 hours of video are upladed every minute. Assuming each video has to be viewed in its entirity (because how else would they know if the last half isn't infringing?), each minute of video would require the eyes of 1,440 people. For three shifts, that would require a staff of 4,320 people. And let's not forget that to tell whether content is infringing, you need to be a legal professional. The lowest rate I could find for these professionals was $50 per hour, or $104,000 per year. So, in order to do this, YouTube would need to shell out $449,280,000 per year. And that's just in salaries.
      
      Obviously this would drive YouTube out of business. I have a sneaking suspicion you wouldn't care.
      
      But here's the thing: it is not, and never was, the job of any service provider to police their content. Determining copyright infringement was, is, and always will be the sole burden of the copyright holders. They own the copyright, so they - and only they - have the ability to determine whether something could be infringement. The only way to remove that burden is by removing that ability. Is that really what you want?
      
      and they would honestly end up rejected 50% or more of what is uploaded.
      
      That figure is ridiculous. I don't believe for one second that 50% of the videos on YouTube involve copyright infringement. If they did reject 50% of the videos, that's just an argument that they shouldn't do it - because they'd be blocking perfectly legal content.
      
      further, they could get declarations from the user who submits the material that they own the rights, and get full trackable information about the user (rather than allowing essentially anonymous uploading).
      
      You mean, like putting that in their terms of service?
      
      "In connection with User Submissions, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein. (...)
      "YouTube will terminate a User's access to its Website if, under appropriate circumstances, they are determined to be a repeat infringer."
      http://www.youtube.com/t/terms
      
      Anonymous users can't post videos, and if your account is terminated, you can't sign up again.
      
      real isps know who their clients are and can communicate with them if they receive a dmca notice. real honest isps dont continue to host users who get repeated valid dmca notices. (They) have to take steps to remove offending material (...), and take steps to limit their own liablity when it comes to repeat offenders, something youtube just doesnt do.
      
      YouTube does all of this. Pretending they don't is just pure hogwash.
      
      they dont have to automagically know what is legal and what isnt, but they do have to take steps to remove offending material when they see it
      
      Unless they automagically know what is legal and what isn't, they won't know offending material even if they see it. That's not their call - it's the copyright holder's, or (possibly) the court's.
      
      as youtube and many other file hosts are unable to identify the true source of their material because of anonymous postings, there is no way for them to prove where the content comes from.
      
      They do not allow "anonymous postings." And they are under no obligation whatsoever to "prove where the content comes from," becuase that's impossible. They just need to know if it's infringement, and they can only know that if they're contacted by the copyright holder.
      
      and they make the poor assumption that everyone submitting has full rights to the content they are granting a license to youtube for.
      
      It's not a "poor assumption," it's part of their terms of service. If you break it, YouTube does the only thing they can do, and bans you from YouTube.
      [ link to this | view in chronology ]
      - Anonymous Coward, 13 May 2010 @ 10:41pm
        
        Re: Re: Re: Re: Not TAM, maybe
        "And let's not forget that to tell whether content is infringing, you need to be a legal professional."
        
        A: this wouldn't work. How is a legal professional supposed to know whether or not Viacom intended to release a video n youtube? By magic.
        
        You would need to hire a psychic legal professional. Then that psychic legal professional can simply use their psychic powers to automatically direct themselves towards infringing material without the need to watch or analyze non infringing material. That would save tons of time.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 10:41pm
        
        Re: Re: Re: Re: Re: Not TAM, maybe
        on youtube*
        [ link to this | view in chronology ]
        
        Karl (profile), 14 May 2010 @ 12:25am
        
        Re: Re: Re: Re: Re: Not TAM, maybe
        How is a legal professional supposed to know whether or not Viacom intended to release a video n youtube? By magic.
        
        So sorry, I was just following Tiny TAM's logic. He claimed that deciding what is or isn't copyright infringement places an "incredible burden on the rights holder." Apparently, this decision should be taken out of their hands, and placed into the hands of YouTube.
        
        Since YouTube should bear the responsibility of knowing what is copyright infringement, they obviously should be the ones given the ability to make that decision. I assumed that Tiny TAM would want YouTube to hire copyright lawyers for that, but if he wants $9.00/hour wage slaves to decide it for him, then let it be so.
        
        Fortunately, when YouTube becomes the authority on which videos are infringing on copyright, we can all rest assured that he'll abide by their ruling without complaint.
        
        Right?
        [ link to this | view in chronology ]
      - Anonymous Coward, 13 May 2010 @ 10:45pm
        
        Re: Re: Re: Re: Not TAM, maybe
        and why should people not be allowed to post anonymous content just to satisfy some copy privilege holder that isn't even owed a monopoly to begin with.
        [ link to this | view in chronology ]
    - mirradric, 13 May 2010 @ 10:44pm
      
      Re: Re: Re: TAM
      even a dmca notice can take time, first you have to find the offending material, you have to qualify it, you have to find your exact matching material and identify it as well
      
      So this process is too tedious for a right holder who knows the original material but is not for Youtube? Considering that Youtube has to deal with hordes of rights holders, this is multiplied almost infinitely.
      
      They could easily have 1000 people per shift, 3 shifts, doing nothing but reviewing videos as they are submitted, but that would cost money, and they would honestly end up rejected 50% or more of what is uploaded.
      
      Perhaps you are forgetting how much the burden was once you've offload it onto someone else. So Youtube should have a copyright department so large that it'll probably dwarf the aggregated copyright office in the world in order to police the copyrighted material.
      
      they can control it. they dont have to automagically know what is legal and what isnt, but they do have to take steps to remove offending material when they see it, and take steps to limit their own liablity when it comes to repeat offenders, something youtube just doesnt do.
      
      Again, how do they know what is offending when they see it without automagically knowing what is legal? Remove all offending looking material including those uploaded by rights owners and have those rights owners crying foul that youtube is discriminating against them?
      
      In the end, youtube can control what is on their site, but they choose not to. they choose not to know who their submitters are, and they make the poor assumption that everyone submitting has full rights to the content they are granting a license to youtube for. since they cannot clearly say who gave them the license, they are on pretty weak ground.
      
      So, youtube should discriminate against those who cannot easily show that they have the license (of home made videos for instance). So all uploaders should go all the way out to provide proof of license (maybe by explicitly registering their videos for copyright, swarming the copy right office with registrations leading to rubber stamp approval, just like now. How does it change the situation other than to make it harder for legit uploaders?) just for a few minutes of video. So perhaps copyright w/o registration is useless law after all.
      [ link to this | view in chronology ]
- Anonymous Coward, 24 May 2010 @ 10:31am
  
  Re:
  "youtube skirt their liability by placing an incredible burden on the rights holder an by accept absolutely no responsibility of their own"
  
  The law was explicitly written as such. You just stated the very premise OF the safe harbor as though it's an abuse.
  
  The service provider is merely obligated to obey takedown notices and counternotices. That's what the law clearly requires them to do, and they do exactly that.
  
  You the copyright holder are now realizing the ridiculousness of the scale of the problem which you would have foisted completely on the service providers had the safe harbor not been enacted.
  
  The smart copyright holders will concede and find new ways to make money instead of trying to hold back a billion people marching in the same direction.
  
  You who live by the old model, who refuse to acknowledge transformative use by the community, will be crushed like Atlas by the burden of the task you are trying to accomplish; a task the DMCA does not require the service providers to help you with.
  [ link to this | view in chronology ]
Anonymous Coward, 13 May 2010 @ 11:31am

"incredible burden on the rights holder "

ITS ALL ON YOU. YOU ASKED FOR IT. YOU GOT IT.
Fucking whinny ass middle men
[ link to this | view in chronology ]
pixelm1 (profile), 13 May 2010 @ 11:43am

This first amendment thing is the latest attempt to insert false information into the debate. The way takedowns work, you send a notice, the individual poster gets notified, if they object, the clip is reposted unless the copyright owner sues and wins. So yes, there's lots of due process.

And, as the supreme court noted, it's entirely impossible to sue every infringer (and TechDirt would be first to complain if copyright owners tried).

And, no, takedowns don't work. Just today, YT announced an unindexed section of the site. Add to that private sections and the overwhelming of the site with copyrighted stuff whenever something is hot, and it is impossible to use the takedown process to limit infringement.

And, no, just giving up isn't the answer. the right of creators and, yes, consumers, to participate in lawful business models without interference of theft is way, way too important.
[ link to this | view in chronology ]
- Anonymous Coward, 13 May 2010 @ 11:55am
  
  Re:
  Uhh, no, that's not how takedowns work.
  [ link to this | view in chronology ]
  - Anonymous Coward, 13 May 2010 @ 11:59am
    
    Re: Re:
    oh please then, enlighten the class and tell us how it works. you can also tell us exactly how many dmca notices you have sent or received in your life, just for reference.
    [ link to this | view in chronology ]
    - Anonymous Coward, 13 May 2010 @ 12:07pm
      
      Re: Re: Re:
      Or, you know, you could just spend 15 seconds looking up the process. But that would go beyond the typical TAM attention span, I suppose.
      [ link to this | view in chronology ]
      - Anonymous Coward, 13 May 2010 @ 2:30pm
        
        Re: Re: Re: Re:
        no i would rather hear it from you. you are fast to deny, and very, very slow to add anything. come on big boy, in your own words without links to anyone else, explain the process. Oh yeah, please show examples of your dmca notices and how you handled them. Please, the class is waiting mr masnick.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 3:09pm
        
        Re: Re: Re: Re: Re:
        You're projecting again, TAM. Don't worry, I'm sure if you do it enough people might actually take your conspiracy theories seriously.
        [ link to this | view in chronology ]
      - Anonymous Coward, 13 May 2010 @ 2:52pm
        
        Re: Re: Re: Re:
        TAM, Karl ( May 13th, 2010 @ 1:06pm ) already explained how takedowns work. Stop making yourself look like a fool. We all know how takedowns work, denying it only makes your position look even more retarded than it already is.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 4:08pm
        
        Re: Re: Re: Re: Re:
        sorry, but karls explaination isnt correct. get a laywer, they will explain it to you better. i want to hear your opinion, there isnt enough humor on here already.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2010 @ 4:46pm
        
        Re: Re: Re: Re: Re: Re:
        Or you could read the well documented process, but again, that would require you to actually read something.
        [ link to this | view in chronology ]
C.T., 13 May 2010 @ 12:25pm

DMCA and ISPs
I'm having a hard time understanding the following claims:

The DMCA was written very much for the copyright holders (hell, it was basically written by the industry). It was because of that, the ISPs then freaked out, when they realized that legislation written entirely by the industry would almost certainly put a ridiculous liability burden on ISPs. So they started making noise and complaining. Because of that, the DMCA's safe harbors were put in.

The entire law was written in the interests of copyright holders, and it's massively one-sided towards them. The one balancing factor is the safe harbors.

I am not sure that I understand your perspective or the narrative you are advancing. Perhaps I am misunderstanding your point, but you seem to be suggesting that the safe-harbors were added to the DMCA to counterbalance other provisions that are harmful to ISPs. However, besides the safe-harbor provisions, there is nothing in the DMCA that really even applies to ISPs.
[ link to this | view in chronology ]
- DH's Love Child, 13 May 2010 @ 12:31pm
  
  Re: DMCA and ISPs
  THe ISP's correctly recognized that they would be the targets of infringment lawsuits the way the DMCA was written, so they raised all kinds of noise to ensure that they had protection from frivolous lawsuits.
  [ link to this | view in chronology ]
DocMenach (profile), 13 May 2010 @ 12:38pm

He still hasn't said....
It's funny, despite his constant crying of "Youtube/Google needs to automatically take down all infringing content" and "It's too much of a burden on the rights holders to request takedowns" TAM (or whoever he might be) has never once stated how this would even be possible.

How could Youtube/Google/any other service provider have any possible clue what is infringing and what isn't if the copyright holder doesn't tell them?
[ link to this | view in chronology ]
- interval, 13 May 2010 @ 12:48pm
  
  Re: He still hasn't said....
  @DocMenach: "How could Youtube/Google/any other service provider have any possible clue what is infringing and what isn't if the copyright holder doesn't tell them?"
  
  With *magic*.
  [ link to this | view in chronology ]
- Anonymous Coward, 13 May 2010 @ 2:25pm
  
  Re: He still hasn't said....
  Simple answer: TAM and his kind don't care. They'd be perfectly happy if all the user-generated/uploaded content sites just disappeared.
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Anonymous Coward, 13 May 2010 @ 12:54pm

"Simply put, Congress never intended such a patently one-sided result. "

You mean like 95 year copyright lengths for corporations and the lifetime of the artist + 70 years for individuals? Retroactive copyright extensions that never allow anything to enter the public domain? Astronomical punishments for accidental infringement but very minor punishments for claiming infringement on something that one does not even have a copyright on? That's not one sided indeed.
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Hoeppner, 13 May 2010 @ 1:03pm

For kicks people should "flag" videos media companies want in. Commercials, movie previews, and similar.
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Anonymous Coward, 13 May 2010 @ 1:54pm

Before waxing poetic on the DMCA it is useful to be familial with a synopsis of the statute. One such synopsis can be found at:

http://www.copyright.gov/legislation/dmca.pdf

The suggestion that the "content industries" wrote the DMCA and it was amended only after ISPs and the like raised a ruckus shows a definite misapprehension of how legislation works its way through Congress, not to mention that most of the DMCA has absolutely nothing to do with ISPs. I rather doubt, for example, the "content industries" even gave a damn about the provisions pertaining to the plug-molding of vessel hulls that was inserted in response to the Bonito case.

The DMCA addresses a multitude of subjects far, far beyond the mere relationship between rights holders and service providers.
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- Anonymous Coward, 13 May 2010 @ 2:55pm
  
  Re:
  "The suggestion that the "content industries" wrote the DMCA and it was amended only after ISPs and the like raised a ruckus shows a definite misapprehension of how legislation works its way through Congress"
  
  The suggestion is a correct one.
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- Anonymous Coward, 13 May 2010 @ 3:10pm
  
  Re:
  Legislation "works its way through Congress" by being written by lobbyists.
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  - Anonymous Coward, 13 May 2010 @ 6:05pm
    
    Re: Re:
    ...and my point was simply that the DMCA contains Titles I-V, with only Title II having any significant relationship to rights holders vs. service providers. For example, I rather doubt anyone in the content industries (including their lobbyists) had the slightest input with respect to Title V.
    
    The DMCA is much broader than the relatively limited set of issues presented here with regularity.
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    - Anonymous Coward, 13 May 2010 @ 10:56pm
      
      Re: Re: Re:
      The point that the DMCA is broader does not negate the fact that it was lobbied for by industry lobbyists and it doesn't negate anything that Mike has said. Bills often cover many issues, the general alleged purpose of the bill would be health care reform but they'll be one aspect that covers something completely different that lobbyists of some irrelevant industry lobbied for. and we're discussing the portions of the bill that shouldn't be there. What's your point? That there are other things in the bill? So?
      
      We're discussing the reality that the sky is blue and the grass is green, but there is also the reality that the moon exists and so does Mars, so reality is much broader than what our discussions cover. So? Irrelevant to what we're discussing and it doesn't negate the realistic nature of what we're discussing.
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JTO (profile), 13 May 2010 @ 2:34pm

There seems to be a paranoia held by some copyright holders that everyone on the Internet are marauding pirates, intent on stealing everything not nailed down by ironclad security. The fact is, that's simply not the case. Sure, people will steal content. It's really no different that people making photocopies of books or others making mix tapes. Apple proved that making content accessible and reasonably-priced will attract great gobs of money. Despite the labels' claims, the music industry is far larger today than it ever was. That's because the Internet provides a massive distribution network to the top 1% of the planet's richest people. Recently, we are starting to see the same thing with books and other printed works.

No matter how the DMCA is worded or interpreted, you can't get the toothpaste back in the tube. If publishers do not find ways of distributing content to those who want it, they only thing they can ensure is that it WILL be stolen. People will pay for legal, portable, high-quality content. Not everyone, but enough to make the process worthwhile. In the meantime, publishers save on printing, packaging, and distribution costs.

However, holding ISPs liable for user-generated content is potentially hazardous. In such a case, ISPs have a choice between potentially expensive fines or violating users' civil rights.
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Anonymous Coward, 13 May 2010 @ 3:18pm

If enabling = inducing then companies who sell fast cars could be said to be inducing bank robbery, or those who make steak knives said to be inducing murder. I think Google should win this one.

On the other hand there are copyright violations currently on the Internet, a lot of them. If you accept the honest opinion that this is a bad thing, and that the world would be a better place if this were not the case, then you realize the frustrations of those who are working towards that end. Yes they flail about a lot, and try many different things that don't work, or make the situation even worse (such as Sony's rootkit fiasco), but that doesn't mean they are all intentionally evil.
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Anonymous Coward, 13 May 2010 @ 5:36pm

You ALL have it wrong
it's not the ISP's OSP's gooogle or Youtube that is a fault here. The MONITOR manufactures are to blame. without them you would Never see ANYTHING. ( see I am thinking like the RIAA now)
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Bengie, 14 May 2010 @ 8:08am

Stealing
You can't steal non-physical infinite "things". Stealing involves * removal* as in "it is no longer there".

If I steal your car, is it still there? Try explaining to the police how someone stole your car yet it's still in your garage.

You may want to use a more correct term, like infringement.

Dictionary.com - Infringement: A violation, as of a law, regulation, or agreement; a breach

So you broke a law, but you didn't steal.

Here's a good analogy.

Infringement is to stealing as not helping is to murder.

You can say all your want how if your neighbor helped you defend against an assault your wife/child/etc would not have died, but you can't say it's your neighbors fault.

You can say all you want that if you didn't P2P that movie/song, you *would have* bought the movie/song. Ohh wait.. most people who pirate also are the largest spenders.
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- Anonymous Coward, 14 May 2010 @ 9:15am
  
  Re: Stealing: I used to buy in a store , or hear it " one the radio-oooH" , now I just "steal" it online.
  call it "theft" , call "infringment" , Call it "Appropriation" call it "use without legal payment for use ,,
  
  .. either way , it has a legally enforceable coyright : "the government and the courts are charged with the duty of guaranteeing such profit ,,in the future, even in the face of changing circumstances" ;in this case mediums of transmision.
  
  I used to buy in a store , or hear it " one the radio-oooH"
  , now I just "steal" it online.
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  - Technopolitical (profile), 14 May 2010 @ 9:44am
    
    Re: Re: Stealing: I used to buy in a store , or hear it " one the radio-oooH" , now I just "steal" it online.
    whhoops, that was me , forgot to sign in,, I am never Anonymous , and never a Coward.
    
    "ON the Radio---oh" {amazing how everyone will know the song, where just those very common 3 words come from. )
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  - Anonymous Coward, 14 May 2010 @ 2:07pm
    
    Re: Re: Stealing: I used to buy in a store , or hear it " one the radio-oooH" , now I just "steal" it online.
    "the government and the courts are charged with the duty of guaranteeing such profit"
    
    WRONG! Profits are never mentioned in copyright law! What kind of misinformation have you been given? Copy right is the right to copy, and control, for a limited time, who can copy your work. IF you make a profit because of it, more power to you, but the courts and government have never been charged with guaranteeing your profits.
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    - Technopolitical (profile), 14 May 2010 @ 3:24pm
      
      Re: Re: Re: Stealing: I used to buy in a store , or hear it " one the radio-oooH" , now I just "steal" it online.
      http://www.techdirt.com/article.php?sid=20100513/0000529405#c1119
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    - Technopolitical (profile), 14 May 2010 @ 3:27pm
      
      Re: Re: Re: Stealing: I used to buy in a store , or hear it " one the radio-oooH" , now I just "steal" it online.
      Why else would you have a copyright , but to protect profits ( and use)?
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Technopolitical (profile), 14 May 2010 @ 1:08pm

A Bill of Rights for Songwriters and Composers Created by ASCAP, the American Society of Composers, Authors and Publishers
A Bill of Rights for Songwriters and Composers
Created by ASCAP, the American Society of Composers, Authors and Publishers

http://www.ascap.com/rights/

just as citizens of a nation must be educated about their rights to ensure that they are protected and upheld, so too must those who compose words and music know the rights that support their own acts of creation. Without these rights, which directly emanate from the U.S. Constitution, many who dream of focusing their talents and energies on music creation would be economically unable to do so - an outcome that would diminish artistic expression today and for future generations.

At this time, when so many forces are seeking to diminish copyright protections and devalue artistic expression, this Bill of Rights for Songwriters and Composers looks to clarify the entitlements that every music creator enjoys.

We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.

We have the right to license our works and control the ways in which they are used.

We have the right to withhold permission for uses of our works on artistic, economic or philosophical grounds.

We have the right to protect our creative works to the fullest extent of the law from all forms of piracy, theft and unauthorized use, which deprive us of our right to earn a living based on our creativity.

We have the right to choose when and where our creative works may be used for free.

We have the right to develop, document and distribute our works through new media channels - while retaining the right to a share in all associated profits.

We have the right to choose the organizations we want to represent us and to join our voices together to protect our rights and negotiate for the value of our music.

We have the right to earn compensation from all types of "performances," including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.

We have the right to decline participation in business models that require us to relinquish all or part of our creative rights - or which do not respect our right to be compensated for our work.

We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.

Make Your Voice Heard!

http://www.ascap.com/rights/
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- Anonymous Coward, 14 May 2010 @ 4:50pm
  
  Re: A Bill of Rights for Songwriters and Composers Created by ASCAP, the American Society of Composers, Authors and Publishers
  You're going to be replaced by robots in the near future.
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  - Technopolitical (profile), 16 May 2010 @ 6:35am
    
    A Bill of Rights for Songwriters and Composers Created by ASCAP,: "You're going to be replaced by robots in the near future."
    "You're going to be replaced by robots in the near future."
    
    You geeks ALREADY have been.
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    - Anonymous Coward, 16 May 2010 @ 10:30am
      
      Re: A Bill of Rights for Songwriters and Composers Created by ASCAP,: "You're going to be replaced by robots in the near future."
      Yes. And "artists" are next. What's your point?
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      - Technopolitical (profile), 16 May 2010 @ 9:05pm
        
        Re: Re: A Bill of Rights for Songwriters and Composers Created by ASCAP,: "You're going to be replaced by robots in the near future."
        No Robot will every make art. just as Cmdr. Data (star trek0
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        Anonymous Coward, 17 May 2010 @ 5:42pm
        
        Re: Re: Re: A Bill of Rights for Songwriters and Composers Created by ASCAP,: "You're going to be replaced by robots in the near future."
        Robots will make art.
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