Another Court Rejects Idea That DMCA Requires Proactive Approach From Service Providers
from the sorry-viacom dept
The very crux of the ongoing Viacom/YouTube lawsuit is whether or not the DMCA requires that a service provider, such as YouTube, proactively police the content on the site, perhaps via a filter tool. The lower court rejected that claim, saying that the DMCA is pretty clear that the service provider needs specific notice of infringing works (via takedown notices, for example). The entertainment industry and its supporters continue to argue that there is a mythological obligation of service providers to police their own site once they have general knowledge that there's some infringing works. Now we have yet another court ruling (and it's not the first) to completely reject this claim.The lawsuit involves an artist who discovered some allegedly infringing copies of her work were available via the photo hosting site Photobucket. She sent some takedown notices, and then decided that she'd sent enough takedown notices, so Photobucket should be "on notice" about her works being infringed, and she expected the company to proactively police her works and keep them off the site. As Eric Goldman notes, the court made quick work of this argument, in explaining how it's simply wrong.
The requirement that DMCA-compliant notices identify and locate specific acts of infringement undermines Plaintiff's position, as her past notices do not identify and locate other, and future, infringing activity. The Court does not accept her invitation to shift the burden from her to Photobucket....Without receiving notices identifying and locating each instance of infringement, Photobucket did not have "actual knowledge" of the complained of infringements or "aware[ness] of facts or circumstances from which infringing activity is apparent."The court also thinks too much of her complaint is that it's just too much work to police her own copyrights (an argument that Viacom has made as well):
Plaintiff contends that failure to grant her relief will require her to find infringing activity on Photobucket's site and report it to them through DMCA-compliant notices. She contends that this will be difficult and labor intensive. However, the purpose of her motion is to shift that same burden to Photobucket, without Photobucket having the benefit of knowing whether Plaintiff has authorized any of her works to be displayed on its site. While, as Plaintiff points out, Photobucket is the larger enterprise, the burden it would bear in having to continually search its site for infringing activity is heavy. Furthermore, saddling Photobucket with this responsibility is out of step with the DMCA, which, as noted above, places the burden of uncovering infringing activity on copyright holders.The court also rejects the notion that Photobucket should be required to use a filter:
"Plaintiff concedes that such technology is very burdensome to implement and notes Photobucket's contention that it would not be feasible to use such technology."It seems like a pretty clear and concise ruling that debunks the claims of many folks who regularly comment on this site.
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How much longer are sites going to be able to hide behind this?
They certainly don't think technology is going to stand still, do they?
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It's not the site's job to determine infringement, but a court's.
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> > be feasible to use such technology"
> How much longer are sites going to be able to
> hide behind this?
Apparently as long as the law says they can.
Sucks when judges keep agreeing with Mike's position, doesn't it? Kinda leaves you twisting in the wind with nothing to say but the same old cliched nonsense about "hiding behind" things.
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My view? I could care less.
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They may not catch all the little fish, but they would have a resonable shot at finding the worst offenders.
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Just as technology made it possible to circumvent the law, technology will make it possible to enforce it.
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Oooh, oooh: Let's crack 4096 bit RSA keys too, while we're at it!
Now seriously: technology is great, but there are physical boundaries that you can't break through. Well, at least, not until there is a MAJOR leap in human knowledge.
Until we (humans) are able to look at something and clearly and unambiguously say "Copyright infringement" for every case, it makes no sense to try to make machines do that which we are unable to do with a high degree of certainty.
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If this is how the courts are ruling, it is likely that the laws will be changed. goodbye 230!
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Who are you referring to? The article is about a lone photographer who probably does not work much because she has so much time to look at Photobucket. Viacom was mentioned. They have something along the lines of what you describe - and they keep suing people over content that was legally uploaded to YouTube, so that's not really working that well either.
You are back to the simplistic view that determining if something infringes is possible without a court deciding. That does not seem to be the case.
They are doing all of this lobbying because dealing with the "problem" by themselves has been impossible. So far, the only real solution has been to make the problem not a problem, but turning a large media company on it's head is difficult to do without your stockholders telling you to get another job.
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It is a situation that isn't tolerable in the long run, and will likely have to be addressed in congress.
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Magic?
You sound like the kind of person that provoked Schneier's security maxim:M/a>
Schneier’s Maxim #1 (Don’t Wet Your Pants Maxim): The more excited people are about a given security technology, the less they understand (1) that technology and (2) their own security problems.
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http://ars.userfriendly.org/cartoons/?id=20081109
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Fingerprinting has been around for ages. The problem is that it doesn't work well enough and there are good reason to suppose that it never will - I refer you (for the second time in this thread ) to Schneier's Security maxim - see my other comment.
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Just look at the history of cryptography and apply the same pattern to copyright protection.
Code-makers come up with an unbeatable code system and coder-breakers break that code. Repeat ad infinitum.
Also, any system of protection will be vulnerable to the analog hole. If you want it to be seen/heard, it must be able to be copied.
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Interesting simile. Is there any that congress can actually do that will empty the ocean? Do you think there may be some unfortunate consequences if they somehow manage to do so?
It is probably better to leave the guy with the spoon to figure out his own shortcomings.
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Once again, I ask a simple question: Why do you feel that is the ISP's or any other service provider's responsibility to police someone else's IP?
And if they do police another's IP for them, will the IP rights holder remburse them for it?
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Double Edge Sword Maxim: Within a few months of its availability, new technology helps the bad guys at least as much as it helps the good guys.
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By realizing that media today doesn't play by the same rules they did even 10 years ago, and that copyright may not be needed in its current maximalist state to continue to encourage creation and expression in a high-speed global market?
When pigs take flight!
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I think I will start a service for easy money using something like Tineye, I do the search and the greedy people pay me to keep searching the web daily for their works and send them the findings each day.
About tech and copyrights, tech will always give you a bad hair day.
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A very, very long time since you really need a human being and in most cases a courtroom full of them to determine things like fair use and acceptable levels of deviation in derivative works.
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See if AT&T
The biggest lobbyist in town will let you do anything like that LoL
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I take this as an admission that you are part of an organisation that intends to lobby congress against the public interest. You have done it before (eg to get the DMCA through) and you intend to do it again.
This time, however, there are big companies in the other camp who didn't exist in 1997. Google and Facebook are just two of them. Also the ISPs are much bigger and the ISP divisions of the telcos are much more prominent. Don't expect congress to roll over like it did before.
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Since copyright it automatically applied to a work whether it is actually registered with the US government, how is photobucket supposed to determine what is copyrighted? How are they supposed to know that the person uploading the photo has the express permission of the copyright owner to upload it or not? Is every person in the world with a camera supposed to submit every photo they take to Photobucket so they can update their filter?
The logistics behind such a requirement are mind boggling to the point that it would bankrupt a service like photobucket in minutes and a service like You-tube in days. There is no way they can scan every photo, video, mp3 etc for infringing content especially when such content can cross mediums. A video can contain not only infringing video content, but also photo, music, sfx, gameplay, books, etc. You-tube would have to police for every possible thing that is copyrightable, not just for the giant multi billion industries but also for the person with a camera who only shares their pictures/films with family and friends.
Logistically impossible.
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However, the purpose of her motion is to shift that same burden to Photobucket, without Photobucket having the benefit of knowing whether Plaintiff has authorized any of her works to be displayed on its site.
*emphasis mine
Yes, Photobucket is likely capable of identifying POTENTIALLY infringing copies, but they have no way of knowing whether or not those copies were authorized. Consider this - assume Photobucket DID implement a technological filter, even the original creator couldn't post her works because the filter wouldn't be able to determine who was doing the posting and whether or not it was authorized.
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The situation in indeed very tolerable, and welcomed by all by a select few who would rather bury then head in the sand than realize that their tiny window in history closed. Adapt or die.
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They do not need to scan content to determine if it's safe based on perjorative filters, like youtube has.
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Photobucket isn't in the hosting business - they are in the content distribution business, and as such, should be liable for what is on their site.
By calling them a "service provider" and allowing them to hide behind 230 and other provisions, you allow a business model predicated on copyright violation to flourish.
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You people are scared to death of this idea, so you're trying to make it seem like rocket science or something.
It isn't.
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An AC upstairs from here remarked that he doesn't care if his photos are shared. How is any hosting service supposed to read minds?
The burden of policing for *perceived* infringement is exactly where it should be: on the rightsholder, and determination of true infringement lies with a court, a supposed impartial judge. That's how it is. They want these copyrights? Then take responsibility for maintaining them.
Would rightsholders prefer that hosting services make the determination all the time? What if they remove content automatically via filter software that a rightsholder actually wants to be seen/heard/used? 'Cause that's exactly what would happen - hosts have no idea one way or the other, so, as they already do on YouTube many times, they'll take down first, ask questions...never, I guess, until someone complains.
Expecting hosts to automagically know what is infringing and what isn't is flat out ridiculous when rightsholders themselves are not qualified or objective enough or even legally permitted to do so.
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Are you telling me that my photos have to be treated like potentially infringing content and my and my viewers' experience has to be degraded because one person is bitching that it's too hard to do what the law requires? Screw you for insinuating that my work is infringing.
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I am assuming you mean the specific arrangement of 0s and 1s to be a fingerprint of the specific picture? In that case, I would just make a pixel one bit darker and claim it as a derivative work.
you're trying to make it seem like rocket science or something.
What you are asking for is basically "strong" artificial intelligence. Considering we've been to the moon, I would say this is quite a bit more difficult than rocket science.
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It is the same with physical goods. It is the car owner's responsibility to secure their car from theft and damage. If they don't buy insurance and their car is stolen, they must pay to replace it.
Honestly, I think the burden to police works companies own is a fair punishment for the insane length copyrights are valid for. If the company wants to hold a copyright for 95 years, they should have to pay to secure that copyright. If a person wants a copyright for life plus 70 years, they and their descendents should have to pay to secure the copyright for that time. They should pay with their own money and time.
There will come a time when such enforcement will cost more than they copyright brings in and the owner will be forced to cede their control.
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What? You really think the ISP's make ALL of their money from your content? That's absurd. I would believe that most internet traffic is business related or legal content consumption (NetFlix, etc.) and really has nothing to do with infringing your content.
Photobucket isn't in the hosting business - they are in the content distribution business, and as such, should be liable for what is on their site.
And Photobucket will remove an infringing item when notified of it. It's still the content owner's responsibility to police their own IP, no one elses.
No one is telling you to lock your content up with copyrights. If you choose to do that, then bear the cost of policing it yourselves.
By calling them a "service provider" and allowing them to hide behind 230 and other provisions, you allow a business model predicated on copyright violation to flourish.
If you are so worried about it, make your own Photobucket site with your content only and then you can reap in all those piles of cash these sites are supposedly making.
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I also see a potential for more abuse if all services like Photobucket started using filters. I could see photos being denied if someone in the picture is wearing a shirt with a logo. Or maybe certain things (like an idiot taking pictures of all the weed he's growing) could trigger an automatic notice law enforcement.
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I am not scared of this. Why would I be?
It's amazing to me that you think an artificial intelligence can be created that can determine whether something is infringing or not, when the content rights owners themselves can't figure it out (Viacom for example).
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But they aren't a business "predicated" on copyright violation. I, and millions of others, use Photobucket and similar sites to share my photos with people. Some people may upload works that are infringing. That does not mean the business is "predicated on copyright violation."
If a drug dealer stands on sidewalk and deals drugs, is the sidewalk predicated on drug dealing?
If Microsoft released a version of Word that contains code which infringes someones copyright or patent, does that mean Microsoft is predicated on IP violations?
(Microsoft steal someone's IP? Unthinkable, right?)
Lets step aside a moment see if we can get Mr. Coward to understand why having Photobucket (or any site) do preemptive filtering is not only bad, but near impossible.
This is a nice picture of a bridge near where I live. http://bit.ly/fsCwls The photographer's work is copyrighted, and has a link on his site to request licensing.
If I walk from my house to the riverfront and take a picture of the bridge, have I violated his copyright?
What if the picture was taken from almost the exact same location? It would not be difficult for me to produce a photograph that I have taken with my own camera, in my hometown, which I own the copyright on, which almost exactly replicates the copyrighted photo. Is that infringing?
If I upload that picture to my Photobucket account, have I violated his copyright?
If a filter is implemented, as some copyright supporters suggest, how is the filter to differentiate between the professional photographers picture and mine? Both were taken from nearly the same location of the same subject, at the same time of day. Is my picture going to be automatically removed? I own the copyright. I took the picture with my camera. I edited it on my computer with software I own.
Any filter or other technological measure implemented to automate this process will invariably take down many works which are not infringing, but are in fact covered by their own copyright. By implementing a filter, you are asking service providers to implement a technological device which in effect, limits my ability to display, share and/or sell my copyrighted photo.
Not only is the filter nearly technologically impossible to create, but it will stifle creativity. If, as an amateur photographer, I get inspired by Ron Saari's work (the photographer linked above) and want to see if I can produce photos as nice as his, am I allowed to upload it to the internet so my photo-club can critique my work. If I am attempting, as an amateur enthusiast, to replicate his work, am I violating his copyright? I'm not selling his work, nor am I giving it away and competing with him. I am simply trying to learn from him, and have my photo-club colleagues offer tips/hints. Would this violate his copyright? Doubtful. Would your filter recognize that? Doubtful. Therein lies the problem. A technological filter, however intelligently created, will not be able to make this type of distinction. My only recourse then, as an amateur would be to hire a lawyer to protect my rights, as granted to me under copyright. Sounds like a great deal for an IP lawyer and almost nobody else.
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Why? GM makes money from cars - yet they're not liable if someone who robs a bank drives a Suburban in the getaway. Nike makes money selling shoes - does that mean that they should be liable if the bank robber wears a pair of Air Pegasus? If not, why do they get a free pass?
[citation needed].
Provide evidence that the majority of the pictures on Photobucket are posted without the copyright holder's consent, or admit you are completely wrong.
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More importantly, if the city is charging for permits to sell on the street, and most of those permits are used by drug dealers, shouldn't the city take some sort of action to fix it? Or would we say that the city is making money from selling permits, so why worry?
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The city has multiple remedies already at its disposal for this problem. First, the people dealing drugs are breaking the law. Arrest them and charge them with that crime. Once you have charged them with the drug dealing crime, you can also add additional crimes for selling items not authorized by the permit, and probably for falsifying a permit (unless you think the drug dealer supplied his real name and contact info).
What you wouldn't do, is put a fence around the street corner and make everyone who wants to walk on it prove they are not selling drugs. You also would not tear up the sidewalk, or arrest the people living in the building the sidewalk is in front of without cause.
Now, lets talk about the "If you stand on a sidewalk with 99 drug dealers, and you are the only one selling apples" myth.
You seem to think that 99% of the content on Photobucket is infringing. Fine, prove it (since that is what the law requires). Tell you what, I'll make it easy on you. Find me 99 photobucket accounts that have infringing content, and I will match it with accounts that contain no infringing content. That would make it 50-50, not the 99-1 you think exists. Heck I'll bet I can find two non-infringers for every one you find. That would make it 99 drug dealers, and 198 apple dealers. Or should we start arresting apple dealers because they happen to sell apples near where drug dealers are selling drugs?
Oh wait, is finding 99 infringing accounts too much work for you? No problem, find me ten. Not only will I match your ten, I will still be able to find 99 non-infringing accounts. Balls in your court ...
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> dealers, and you are the only one selling
> apples
So basically you have no answer whatsoever to his on-point question about the photo of the bridge, so you respond by creating some ridiculous analogy comparing Flickr photos to the sale of illegal narcotics.
Fantastic.
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The owner/creator registers the work in a database. The work itself is he fingerprint. The owner/creator is responsible for giving out usage permission. All other uses are deemed infringing.
Like I said, it's not rocket science.
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> who was doing the posting and whether or
> not it was authorized.
Exactly. I'll never understand how copyright maxilmalists like TAM think this thing is supposed to work. When actual human beings can't determine if a work is infringing without a six-month trial and jury deliberations, and a verdict, and the subsequent appeals and rulings by higher courts, how the hell is some piece of software supposed to be able to do it on the fly?
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Sure, if you want to violate the law. Since the law specifically says certain other uses are *not* infringing, any piece of software that says otherwise would not be in compliance.
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You do realize YouTube is already doing exactly what I'm talking about, right? The next step isn't that far off.
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Gotcha. Want some ground pig's wingsa with that?
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As I was reading through this I kept thinking a similar thought.
If it is such a big hassle then give up.
That or find a way to satisfy the pent up demand that you are obviously failing to meet.
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Yes, it's magic! And I'll let YouTube explain the magic to you, since they're already using a first generation example of what will eventually be everywhere:
http://www.youtube.com/t/contentid
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> be given out.
That's the great thing about fair use. You don't need permission to do it. The law says I can engage in fair use regardless of the wishes and desires of the rightsholder.
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ICE next
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All in all the content and copyright industry is boned. They are trying to force companies to do their job. If Google is forced to police content the only possible sollution I see is to ban all of their stuff. Much like Youtube did for music from the record labels.
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Add this to the list
Every single one recognized that producing thumbnails was fair use. Google v. Perfect 10, additionally, ruled that Google held no liability whatsoever (not even contributory or vicarious) for its "inline linking" of full-size photographs. It also ruled that plaintiffs must take First Amendment defenses into account (e.g. fair use, or "safe harbors") before any injunction can occur.
The Kelly case is an anomaly. Because Arriba Soft (and the company that acquired it, Sorceron) went out of business completely before Kelly's appeal, there was nobody left to argue the case. So, as a matter of procedure, Kelly got a default judgement (PDF), fat lot of good it will do him. (The only remaining issue was about the full-size images, not the thumbnails - those were fair use.)
The courts are very consistent: follow the "safe harbors" rules, and you're not liable.
Incidentally, the "safe harbors" that apply here aren't Section 230, they're 17 USC 512. If anyone cares.
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Re: Add this to the list
http://web.archive.org/web/20080208100556/http://netcopyrightlaw.com/pdf/kellyvarribasoftjudgem ent03182004.pdf
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95% of Attorneys are useless garbage and do far more economic harm than the worst copyright infringers on the face of the planet.
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> about then, right?
You and logic seem to be only passingly acquainted with one another.
If your hypothetical magic filtering software can't or won't take fair use into consideration (without imposing extra-legal permission requirements on people), then it would be censoring legal speech and would therefore violate the Constitution if its use was required as a matter of law.
Got it? Or do you need me to use words with single syllables?
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Why did you ignore that point?
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How many videos are disabled by false copyright claims or misfirings by YouTube filters that are not at all infringing?
Those filters are only there to placate those who have no legal standing to be placated, but YouTube made the effort anyway and they STILL aren't placated.
Those rightsholders with little better to do than worry about every fleeting use of what-have-you need to accept that there is no easy or other way to police their stuff - it's on them to do it. They can follow the law like they expect everyone else to, yeah?
Those rightsholders that don't worry so much about it are very possibly enjoying the free exposure and figuring ways to court and sell something of value to all those new fans.
Direction of energy. Pick your battles. Careful what you wish for, and all that.
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I've been observing a gaming community with tons of 3rd party fansites (TheSims) where a large site that charges for their user-made content has abused DMCA takedowns to knock other competing (read: free) sites off the web. They claim copyright infringement but never mention their own infringement of game materials, lie about ownership of the copyrights, and basically frighten some of these hobbyists into disappearing or, hopefully, finding more secure hosting.
They get away with it knowing full well that no one (yet) has the wherewithall to stand them up in court for it.
Notice and notice would at least put the ball back in the accuser's court, let them put up or shut up. It's too easy to abuse the system as it is structured right now, it's backwards: the burden should always be on the accuser.
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Sorry about the baby dancing example, but if you really cared so much about someone's rights being abused, then you'd be complaining about all the artists who have their work ripped off every day.
But you don't. So quit pretending you do, you worthless douchenozzle.
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Personally I believe people will start encrypting everything so people really wanting to do this has a small window of opportunity to make some money from the greedy people.
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Enjoy your obscurity.
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Copy'right' law itself shouldn't exist, why should anyone be liable for a law that shouldn't really exist?
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It's in same vein as saying to someone "yeah, tell me about it" when they relate to you a tale of woe - you actually mean "You don't need to tell me about it"!
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Clearly, the side walk is guilty
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If you could care less, then you really do care some already.
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Yes, the answer to having too many drug dealer on a city sidewalk is clear: change the sidewalk. Are you serious? You're really going to double down on that argument?
I swear, every time I think an anon-troll couldn't get any dumber, these guys rise to the occasion . . .
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As for the rest, quit whining and follow the law like every other civilized person does in society.
http://www.copyright.gov/fls/fl102.html
"The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."
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It isn't being imposed on YoutTube AS A MATTRT OF LAW. How dense are you?
> Why did you ignore that point?
I didn't. It's irrelevant for the reason stated above.
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From Wikipedia ...
Idiom is an expression, word, or phrase that has a figurative meaning that is comprehended in regard to a common use of that expression that is separate from the literal meaning or definition of the words of which it is made.
Like it or not there are quite a few common idioms in the English language. If you wish to hold the language up to some standard of logical consistency then I'm afraid you're on to a loser.
(Note: I'm not suggesting that 'the language' is an object you can pick up, nor am I experiencing the emotion of fear, nor do I mean you have actually lost a bet).
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