Viacom Says That By Letting People View Videos On Phones, YouTube Loses DMCA Safe Harbors
from the crazy-talk dept
We've seen how the legacy entertainment industry is trying, desperately, to undo the DMCA's safe harbors, in an attempt to force internet companies to effectively kill off user-generated content. Let's be honest here, the goal is to turn the internet more into TV, so there's less competition for the legacy players, and then they can retain their gatekeeper role. Viacom has been at the forefront of this, making some rather crazy claims regarding the DMCA's safe harbors. In the ongoing case between Viacom and YouTube, the court asked both sides to comment further on the "red flag" provisions in the DMCA.This is the crux of the fight here, and the real problem is that (surprise, surprise) the drafters of the DMCA didn't fully understand what they were drafting, and drafted parts of the law such that they could be read in conflict. The key points are that the DMCA safe harbors require expeditious takedown of content on receipt of a valid notice of infringement. The rules for a valid notice are pretty clear, and courts have said that invalid notices do not, then, create a burden to remove content. At the same time, there is a part of the bill that says you can lose safe harbors if there are "red flags" -- that the operator knew of infringing activities on the site. So the entertainment industry's argument is that if you are aware that there's infringement on your site, you lose your safe harbors. That, of course, makes no sense. The only way to read the law such that the two sections are consistent is to read it the way YouTube reads it: if you are aware of specific infringement, rather than just general infringement, then you need to do something. That makes sense.
The problem is that Viacom execs live in a world of denial, where they pretend that it's obvious what's infringing and what's not. Thus, to Viacom, YouTube obviously knew what was infringing and what wasn't... even though Viacom itself falsely reported hundreds of videos as infringing... even though they were not.
In filing the response to the court's questions, however, Viacom takes this argument even further. Showing off its technological cluelessness, it argues that the mere act of YouTube setting up an API that allows YouTube videos to show on mobile phones and tablets outside of the browser, means that YouTube loses its safe harbors.
YouTube’s argument that its syndication must be protected because it merely "makes videos accessible" proves far too much. YT Ltr. 8. Any propagation of user-uploaded copyrighted material increases accessibility in some sense. If the DMCA immunized any act of infringement that increases access, an operator could keep the safe harbor merely by showing that its infringement enabled others to view the work, notwithstanding copyright law’s grant of exclusive rights to the copyright holder. This is why Congress limited the safe harbor to acts of infringement that occur "by reason of storage at the direction of the user."To say that this is stretching the law to ridiculous levels would be an understatement. Effectively, what Viacom is arguing is that if someone uploads a video to YouTube, they only intend to let people watch it via the web. And the idea that YouTube might make such works available on mobile devices somehow goes against the wishes of its users, and shows YouTube making active decisions for the distribution of content. That's insane. And technologically clueless. All YouTube has done is optimize the content for the device viewing it. That's it. People uploading videos to YouTube do so because they want those videos to be seen. They are platform agnostic. Viacom's desperation to break the safe harbors of the DMCA here are really quite crazy, since Viacom itself relies on such safe harbors too -- and is putting its own business at risk out of some sort of quixotic obsession with YouTube.
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Filed Under: copyright, dmca, red flags, safe harbors
Companies: google, viacom, youtube
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What is Viacom's model?
If you can't break it, sue it.
If you can't sue it, destroy it.
I just find it odd how this is looking more and more like a witch hunt for piracy than someone actually interested in making content available for consumers.
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Re: What is Viacom's model?
http://www.contactmusic.com/news/debbie-harry-thinks-music-industry-ruined_1258911
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Re: Re: What is Viacom's model?
Great example AC. /sarc
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Re: Re: What is Viacom's model?
"I remember when vinyl was corrupted by cassettes and the whole industry went crazy thinking nobody would sell any records, so it's really been heading this way for quite some time."
Flipping out of her mind. Because cassettes and CD's killed the industry, oh woe is her.
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Re: Re: Re: What is Viacom's model?
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Re: Re: Re: Re: What is Viacom's model?
'The Great Firewall of America' is on its way, coutresy of greedy corporate interests and our government selling out to the highest bidder.
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Re: Re: What is Viacom's model?
I can only wish that the statements that Blondie there said come true someday.
When the music industry is truly ruined, I promise to party until dawn.
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Re: Re: Re: What is Viacom's model?
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Re: Re: Re: Re: What is Viacom's model?
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Re: Re: Re: Re: What is Viacom's model?
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Re: Re: Re: What is Viacom's model?
And really, Debbie, you had your day and you had one good album, so please stop whining.
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Re: What is Viacom's model?
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Re: Re: What is Viacom's model?
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Every Viacom's exec's VCR's flash 12:00.
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Re:
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Obviously Youtube is taking content from one of their businesses (website) and hosting it in another format (phone) so it's infringement all around.
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I can't believe they are equating this
Finally, YouTube’s construction of the red-flag provision denies it practical effect and meaning. Though the infringing character of a particular clip could, in theory, be “obvious,” yet not subjectively “known,” in practice subjective knowledge is most often proved by demonstrating a fact’s obviousness to a reasonable person. See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (inferring officers’ subjective deliberate indifference “from the fact that the risk of harm is obvious”).
It's one thing to say that a reasonable person can determine that chaining someone to a hitching post for 7 hours in the sun without bathroom breaks and little water is harmful (i.e. the Hope v. Pelzer case). It's quite another to say that a reasonable person could determine whether a clip is in fact infringing by looking at it.
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Re: I can't believe they are equating this
It's not much of a stretch to assume that the teenage girl lip synching in her bedroom to Pink Floyd isn't David Gilmour. Such a video posted to YouTube could possibly have permission from the band, but a reasonable person would find it unlikely.
On the other hand, I hear stories all the time about how Walmart tells people they can't print copies of photographs they themselves took, because they look "too professional" or are in black & white.
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Re: Re: I can't believe they are equating this
That's extensive CYA on Walmart's part. As the largest retailer in the US, it's got a big target (but not an actual Target, which is a bit different) painted on them at all times. If some copyrighted photos are reprinted, the rights holder is likely going to sue Walmart rather than the actual infringer. And it's not as if Walmart is willing to leave that decision to the "professionals" in its photo labs. The simplest solution is to erase the possibility of a judgement call.
It's often a solution that plays out badly via word of mouth for Walmart but I imagine it views the alternative (read: threat of a large lawsuit) to be even worse. With the ready availability of cheap, high MP cameras and cheap (even free) high quality photo editing software, thousands of amateur photographers are going to find themselves unable to reproduce their own photos. There's nothing quite like a collision of high tech and litigious culture.
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Re: Re: Re: I can't believe they are equating this
(but not an actual Target™
, which is a bit different)"
And G forbid if they ever used any kind of target™
, that would get them sued for trademark.
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Re: Re: I can't believe they are equating this
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Corporate power grab gone wild
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Re:
BTW, does every sentence you write begin by addressing yourself?
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Re:
That, of course, is crazy.
First, mobile phones with data plans are part of the internet too so it's not doing anything substantively different with the video.
Second, the users directed youtube to use their videos in terms governed by the EULA. If sending it to a mobile device is in the EULA in some way, then it is still at the direction of its users and they should still qualify for a safe harbor.
It took me about four reads too.
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Re: Re:
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Re: Re: Re:
1) YouTube operates on the internet
2) Mobile phones with internet capability can access it
Therefore, YouTube is guilty of copyright infringement.
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Re: Re: Re: Re: If it's on the Internet... you must not acquit !!!
That pretty much sums up their understanding (now if they can just bribe/convince/buy some judges into their way of thinking)....
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Try every permutation of laws, concepts and words until you find the combination that breaks open the system.
Pay no attention to if it makes sense, thats not the target here - winning is. To lawyers there is no cheating, no right or wrong, just or unjust, there is only winning or losing.
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Re:
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Grokster?
Yes, it could resurface. It was the inducement that got Grokster in trouble, not the fact that some people used it for their own copyright infringement.
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Oh, you routinely say legislators don't know what they're signing.
'This is why Congress limited the safe harbor to acts of infringement that occur "by reason of storage at the direction of the user." '
HMM. That says manipulation (formatting) by Youtube removes safe harbor, because it's NOT as uploaded. Looks a good hook to hang a case on. Hope it succeeds.
"They [videos] are platform agnostic." -- Nope. Require specific software in the browser. Because of recent Youtube changes with no other obvious purpose, I can't use certain stand-alone software (that had been working) to download Youtube videos. In fact, Youtube wants to force one to view ads. It not only complains that my browser is outdated, but forces me to allow javascript. So, NO, it's NOT "platform agnostic", you're blatantly wrong again.
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Re: Oh, you routinely say legislators don't know what they're signing.
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Re: Oh, you routinely say legislators don't know what they're signing.
I think that "they" refers to the people uploading the videos, not YouTube itself, though the sentence is somewhat ambiguous.
Even YouTube itself is platform agnostic in the sense that it checks for certain features, not specific platforms. I will never be able to view YouTube on my programmable TI-83 calculator since it doesn't support the needed features. But I can view YouTube regardless of using Windows, Linux, FreeBSD, Android, IOS, etc regardless of whether I am using FireFox, IE, Chrome, or Opera.
If someone comes out with a whole new OS and a whole new Browser tomorrow, Youtube would work as long as that combination implemented all required features. That fits "platform agnostic" as it is generally used when talking about computer technologies.
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Re: Re: Oh, you routinely say legislators don't know what they're signing.
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Re: Oh, you routinely say legislators don't know what they're signing.
Wow.
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This is interesting
So, supposing Youtube had general knowledge of infringement, in what way are the tools youtube provides to content owners ( http://www.youtube.com/t/copyright_owners ) not sufficient intermediary steps?
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Re: This is interesting
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Hit the nail on the head there. Draconian copyright enforcement is one piece of it and repealing net neutrality is another. By the way, how did that net neutrality vote go the other day?
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Was there actually a part about phones in there? That paragraph is so full of lawyer I can barely read it.
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Re:
My spouse looked at my monitor and fix that for you
Was there actually a part about phones in there? That paragraph is so full of fuckery I can barely read it.
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1984 Analogy
I gave the tape to my friend.
I didn't know it could play on his VCR.
MAFIAA is now suing the VCR company for contributory infringment.
Fucking magnets, How do they work?
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Re: the gravity of the situation
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Re: Re: the gravity of the situation
Better get the strong one too.
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clearly clueless execs...
clearly the execs don't realize that phones can browse the web. While YouTube may've made an API specifically for phone use, I can still get on my phone browser and watch youtube videos without the app. And even the app uses the internet.
Even if Viacom's assumptions about the intents of youtube uploaders is true, the videos are STILL being watched via the web.
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It seems very arrogant to say "this is the only way to read the law", because that is just not true. You can read the law the other way as well: They can be made aware of specific infringing, and if they are notified often enough, they should be away that their site is being used for infringment, thus setting the red flag condition.
It doesn't have to be specific to be true.
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Re:
People say the law is ambiguous, but you still can't create rules that aren't explicitly stated.
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Re: Re:
My comment is mostly that Mike is very arrogant to assume there is only one way to read the law. That is up to a judge, not some arrogant and fixated "tech" writer.
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Re: Re: Re:
And some judges interpret it differently than Mike:Columbia Pictures v. Fung, 2009 WL 6355911 (C.D. Cal. Dec. 21, 2009).
The text of the DMCA is clear. A service provider maintains its safe harbor if it:It's clear from the text of the statute that if you see obviously infringing activity and do nothing, you lose your safe harbor. This standard is less than actual knowledge of specific infringement, but more than general knowledge. Mike likes to pretend this doesn't exist, but he can't deny what the statute says.
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Re: Re: Re: Re:
You only have to go search for a song name and lyrics to get videos with the copyrighted song and the lyrics scrolling. Sometimes with the music video, sometimes without. Unless specifically provided by the rights holder, those would be pretty obviously infringing.
The move on SOPA is in some ways to clear up the situation, to make moot certain types of protections that "media grifters" have been working with. It will certainly be a big change for some of them.
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How is it apparent that this is not a case for a specific upload? How do you instantly know that it is infringing and not approved?
And how would you create an automated system to do that?
Or should we stop the digital revolution and go back to lots and lots of manpower? Or just stop using the internet to its full potential? What is more important, progress of the human race or legacy gatekeeper industries?
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Response to: Rekrul on Nov 10th, 2011 @ 9:26pm
Also, I think it's time to eliminate megacorporate influence in politics.
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Re: Response to: Rekrul on Nov 10th, 2011 @ 9:26pm
If we don't, really soon megacorps are going to be the government.
As hard as it may be to give up my childhood dream of living out Neuromancer, I think I prefer democracy.
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Re: Response to: Rekrul on Nov 10th, 2011 @ 9:26pm
I hope you got James Cameron's permission before paraphrasing his dialog!
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Nice to pin down an AC...
It's nice to be able to pin down their parent company as Viacom.
Now we just have to work out who's paying for the violent-psycho-loon-ACs...
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Then upload it somewhere, and send takedown requests to every website that uses the English language.
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Re:
http://allmusic.com/artist/the-the-p5628
but no band called "A" (but there is one called "E").
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Re: Re:
http://en.m.wikipedia.org/wiki/A_(band)
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