DOJ Lets Channelsurfing Operator Mostly Off The Hook
from the well,-look-at-that dept
Almost exactly two years ago, we wrote about ICE and the DOJ arresting Brian McCarthy, the operator of Channelsurfing.net, one of the domain names they seized in one of their seizure parties earlier that year. As we noted at the time, Channelsurfing itself appeared to host no video content, but rather embedded video content from elsewhere. We had trouble understanding how that was a criminal copyright violation. Some of our usual critics in the comments insisted that the courts would take down McCarthy and that he was in clear violation of criminal copyright statutes and would end up in jail. That still seemed fairly dubious -- and that's now supported by the feds agreeing to "grant amnesty" to McCarthy by "deferring" the trial.What this really means is that they effectively came to a plea bargain-type of deal, whereby McCarthy is not found guilty and doesn't have to spend any time in jail. He does still get treated under what appears to be effectively a parole type system -- in which he needs to stay out of trouble for a while, and has to regularly check in with a "US Pretrial Services Officer" (and he can't leave his local region without permission from the same). He does still have to pay back the amount that the feds claim he earned illegally.
Who knows what's happening fully behind the scenes, but it seems likely that the Aaron Swartz suicide, and the new focus on over-aggressive US prosecutors' attempts to coerce guilty pleas out of individuals in vaguely similar situations, might have led US Attorney Preet Bharara and his assistant Christopher Frey to realize that it might be best to cut a deal and run. Actually taking a case like this to court would be a PR disaster for the DOJ following the whole Aaron Swartz thing, and people at the DOJ must recognize that. Given that the DOJ similarly had to drop other cases that came out of domain seizures, including the ones involving Dajaz1 and Rojadirecta, the gung ho attitude to the DOJ took towards seizing websites based on the RIAA and MPAA's questionable claims of infringement is increasingly looking like a complete disaster without any significant results.
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Filed Under: brian mccarthy, copyright, criminal copyright, doj, prosecution
Companies: channelsurfing.net
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I'd love to get details on the deal and know more about the stuff going on in the backstage...
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Another victory for the Dept. of Crazy sponsered by the entertainment industry.
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Exactly. Whenever faced with facts like that one, Mike tries to downplay it because of the cost of running the site. Yeah, running a site like that is SOOOOOO costly. Not.
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And your experience running a large site that gets lots of traffic is...?
Given the size they reported it to be, it's likely that basic costs (hardware and bandwidth) probably ran about $5,000 per month -- or approximately the same amount he earned.
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There are multiple services that estimate traffic. They're not great, and not all of them have too much historical data, but looking at Alexa, Compete and Comscore can give you some estimates. When the site was seized, it looks like it was doing in the range of 50,000 to 60,000 pageviews per day. It was considered a top 10,000 site at the time on those services, indicating similar levels of traffic.
And how did you figure out how much it cost per month? Honestly, I'd love to see how you came up with those figures. I'm all ears.
You may or may not realize this, but I happen to run a decently trafficked website, that does between 50,000 and 100,000 pageviews per day (sometimes more than that). So I have some familiarity with the costs of hosting a site of approximately this size.
What is your experience with the same?
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Great stuff. I have no reason to doubt it.
You may or may not realize this, but I happen to run a decently trafficked website, that does between 50,000 and 100,000 pageviews per day (sometimes more than that). So I have some familiarity with the costs of hosting a site of approximately this size.
What is your experience with the same?
Are you saying that TD costs $5K per month to run, just for bandwidth alone? Can you quantify that bandwidth for me so I can look up the costs?
I've run a few websites of my own over the past decade, but at the moment I don't have any. My most successful one had significant traffic, but it only cost about $100 per month. So the idea that your site, or McCarthy's site, cost 50 times as much seems suspicious to me. How much bandwidth would a linking site, that doesn't host the files, like McCarthy's use? How much does yours use?
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Servers and bandwidth, approximately. We're a little under $5k per month, but not much. I'd really have to look, and need to go get my son and prepare dinner for my wife, but I'll try to get the numbers tonight. I'll have to look, since I don't handle the specific relationship with our hosting company -- I just know the size of the checks we sign.
I've run a few websites of my own over the past decade, but at the moment I don't have any. My most successful one had significant traffic, but it only cost about $100 per month. So the idea that your site, or McCarthy's site, cost 50 times as much seems suspicious to me. How much bandwidth would a linking site, that doesn't host the files, like McCarthy's use? How much does yours use?
Again, I'll have to get back to you, but we pay approximately that much for our bandwidth. The $100 accounts aren't able to run a site that gets any real traffic. Those are shared hosting accounts. As you get any significant traffic, those fall down, and you'd need a dedicated server. And as you get more traffic, you'll need more dedicated servers. I forget exactly how many we're up to, but it's around 6 or so. Alternatively you could build it off of something like Amazon's S3, in which case the costs might be slightly different, but not radically so.
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IF so you're doing on average 250 to 320 Gigs per month, with over a million 'visits' per month as well. Not bad for a mostly text based site though painful on the hip pocket.
Though according to Alexa *eyeroll* you are on loadtime "Very Slow (3.035 Seconds), 82% of sites are faster" - Let me guess, Alexa only analyses whenever your major cron jobs are running that normally leave the site with no data access or very slow loading. Either that or you need some major load balancing which would further increase your costs per month.
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But... that's not all. We also use a CDN to offset some of our traffic (and to make the site quicker). That lowers our hosting bill, but it means there's another fee on top of the money above. I don't have the exact prices on that, but add some to the above. And we pay another service for uptime monitoring and alerts, etc. A few others as well. It adds up.
So, for us, a bit less than $5,000, but not much.
Then, if you're hosting ads for real, you have to pay for an ad server/ad operations, which is another set of fees (not necessary if you're just running pure network stuff, but I'm not sure what Channelsurfing did).
It's possible he was running it under another setup, but even if we dropped the costs down to, say, $2,500, we're still not talking a particularly lucrative business.
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Thanks for the info. I had no idea it costs that much. My sites had much less traffic, and you're right, I was on a shared server.
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Of course it's suspicious, because it's blatantly untrue. Masnick knows it too.
He's been caught in a lie about pirate sites not making any money from ads, so he's decided to double-down and lie some more. Just more of the boneheaded life choices we've come to expect from Mike Masnick.
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As traffic grew, so did Ninja’s monthly server fees. What once cost $200 a month soon ran to $3,000. Beshara solicited minimum $25 donations in exchange for more exclusive access to the private chat boards. “Our biggest donors,” Evans says, “were people living internationally and members of the military who would write letters thanking us for allowing them to keep up with their favorite shows.” In two and a half years, Ninja Video earned about $500,000, with about $60,000 coming from donations and the rest from advertising.
http://prospect.org/article/ninja-our-sites
I believe that NinjaVideo was a much bigger operation. It was operating at about the same time, so it is pretty safe to conclude that the costs in this case were lower, perhaps much lower. Most interesting is the part about making $440,000 in ad revenue over 2.5 years. That's about $175,000 per year. Meaning after $3000 monthly expenses NV was making $140,000 per year.
But this flies in the face of the oft-repeated Techdirt narrative that pirates don't make money and there's no money to be made in advertising.
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Of course it does.
However Mike Masnick will never admit that, as he is a pathological liar and a sociopath.
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Are you sure they were a "much bigger operation"? If you look for sites that were considered similar, those two end up on a lot of lists. So I'm not convinced there was a major difference in size.
$175,000 per year for one of the TOP sites. And, remember, there were at least 5 people working on the site. So, $35,000 per person. Not exactly rolling in the dough, huh?
Let's look at it this way. Based on the numbers you present, they were making less than $15,000 per month for a site that got a lot of traffic. Take out the $3,000 per month it cost to run everything, and you're talking $12,000 per month. 5 people (not split evenly, from the story), but averages out to $2,400 per employee per month. For one of the bigger piracy sites, so big that they had to be taken down by ICE.
In other words, not that much. And just imagine that most of the smaller sites that everyone talks about made *significantly less* than that, because the larger sites tend to be able to get better ad deals in the first place.
So, yeah. These sites do not make that much money.
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There was only one for channelsurfing. I suspect that's because the task of linking is lighter than uploading. I'd also suspect, the bandwidth cost would be far lower.
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FWIW, Ninja Video did not host any files either. They were mainly a forum site; the content was all hosted at third-party file lockers.
They incurred no bandwidth costs whatsoever from "uploading." That was all done by the users of the site.
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Wait, I thought you morons were banging on about how people were getting rich off these schemes, now you're saying that one of the BIGGEST sites you target was pulling in around the same as a single Bay Area sysadmin after costs (for about the same level of work), but split between multiple people? For a service that people were willing to donate to purely because the legal options were deliberately removed from them (by your own citation)?
From your own information, not only was nobody getting rich, but there were very clear and obvious ways in which the rights holders could have stopped people using the site - namely offering a legal option to begin with! It's amazing how when you people actually bother to cite your bare assertions, it starts to look even dumber than the uncited crap you usually spew.
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Yes, again your flawless data proves your point. Either cite everything you claim, or provide reason why your "guesses" are more trustworthy than others here. "It's right because I think it is" doesn't prove any point you're trying to make.
If you don't have figures for his costs, and you don't have figures for a similar operation, then you're just guessing - and what do you know? Your guess happens to be a figure that supports your predetermined conclusion! What a coincidence!
Why should I trust your guess?
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I'd also guess that your desperation is showing. Based on the known facts, please tell me how I'm wrong.
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I'm desperate to have an honest adult conversation without someone proclaiming that their guesses are some kind of gospel truth. You're actually one of the better ones round here to be honest, so thank you for not devolving into a swearing immature mess when challenged.
"My guess"
Yes, you've made a guess, and unlike some around here at least you've based it on something rather than pull figures out of your ass, I'll give you that. But, it's still just a guess, and you don't have all the factors to base it on. For example, you're aware that bandwidth charges may differ greatly between ISPs and hosting providers, and between different contracts with those companies, right? While the traffic may well have been lower (although that is also an educated guess), the per-Mb/Gb charges may also have been much higher. Then, of course, bandwidth is hardly the only cost associated with hosting such a site. Without all the factors, you cannot possible proclaim that this site definitely cost significantly less than the other.
But, there's the wider point you're missing here as well. You concentrate on the fact than this particular person was successful in making a lot of money from the traffic on his site. But, let's look at what that consisted of - his income was derived from web advertising, which is a notoriously low yield way to make money. To make thousands of dollars, he would most likely have had to have had tens, maybe hundreds, of millions of visits. On top of that, the bulk of the traffic are people not served by the content owners themselves - with TV, it's not that people didn't want to pay for the content but that some kind of windowing actively blocked them from accessing the legal services or removed the desired content from legal channels entirely.
In other words, even if we were to presume that you are indeed correct, all signs still point to business model problems in the industry. If a one-man band can make hundreds of thousands of dollars from an extremely inefficient income stream by serving the gaps in the market, why can't the content providers themselves service those gaps themselves using some mechanism that brings more money in?
Whatever income this site got, it was mostly money that the content owners had actively refused in the first place - and the "problem" of 3rd parties meeting that demand is not going to go away while said demand still exists. So, whatever you think of this case, the industry still needs to bring its business into line with modern market realities - if not, there will just be other similar sites, set up to be less vulnerable to prosecution and even detection. In fact, it's probably already out there.
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Will you agree to pay our hosting bills for the rest of 2013?
He's been caught in a lie about pirate sites not making any money from ads, so he's decided to double-down and lie some more. Just more of the boneheaded life choices we've come to expect from Mike Masnick.
This is fairly incredible. When the facts go against you you just pretend I lie. You really, really need help.
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lol. That doesn't have anything to do with anything, but still, the answer is, of course, no. I wouldn't throw water on you if you were on fire.
This is fairly incredible.
It sure is. You're trying to jump through a bunch of hoops hoping to cast some uncertainty about whether not McCarthy made a whole ton of money or just plenty of money hosting a pirate site via ads. You're trying to compare your site, which has nothing to do with the kind of site he ran, but yet refusing to compare it to NInja, which was exactly the kind of site he ran.
You fall into this trap I set for you every time. Instead of admitting you're wrong, you just dig a bigger hole for yourself. It's endlessly amusing.
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@ Mike.. Yep Rule 9!!!!! With Rule 7 and 8 blaring out in big huge red glowing letters too!
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You're positive that our hosting bills are low. I'm giving you a chance to put your money where your mouth is.
You're trying to jump through a bunch of hoops hoping to cast some uncertainty about whether not McCarthy made a whole ton of money or just plenty of money hosting a pirate site via ads. You're trying to compare your site, which has nothing to do with the kind of site he ran, but yet refusing to compare it to NInja, which was exactly the kind of site he ran.
Not jumping through hoops. Explaining how the internet ad industry works -- an industry I'm very familiar with -- to people like you who appear to have no clue.
And, yes, you're correct that our sites ran different ads, but I'm very familiar with the services he used to make his ad money. According to the various legal filings, he used Valueclick, Adbrite and Epic. I'm VERY familiar with them, because they all SUCK. Actually Adbrite just shut down a couple weeks ago after admitting they couldn't make any money. Valueclick and Adbrite were the bottom of the barrel, places you go if you can't get advertising anywhere else. The rates they paid were dismal. We didn't use them because we actually can qualify for better types of ad networks. Sites like Channelsurfing and Ninjavideo do NOT qualify for those ad networks at all.
So, I know you'll never admit it, but I know what I'm talking about on this subject and you clearly haven't got the slightest clue. Wake me when you've actually dealt with an ad network.
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Please post the quote of me saying that. You can't. Because I never said that. And that's because I could not care less what your hosting bills are. They have nothing to do with the discussion of the ChannelSurfing site, despite your desperate attempts to make them germane to the conversation.
You can't control yourself, can you?
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Here, where you express disbelief that his bills were high:
"Are you saying that TD costs $5K per month to run, just for bandwidth alone? Can you quantify that bandwidth for me so I can look up the costs?"
So, what did you mean by your incredulity about the bills being high if you weren't saying that you believe that they're low?
You'd get somewhere if you dropped the smug self-righteous attitude when it's clear you're in the wrong, maybe dropped the childish personal attacks and distortion of others' words while you're at it and you'd have something approaching a mature conversation.
Conceding that popular sites do indeed have costs won't undermine your central argument, unless of course that argument is dependant on the lie that such sites don't cost thousands of dollars to run every month. If so, it's down to you to prove they don't (say, by citing data for once in your life), not for Mike to keep giving first hand accounts of things that are painfully obvious to anyone who's ever been in such a business.
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I didn't say that, you moron. Someone else did.
Perhaps if your tongue wasn't permanently licking Masnick's turdblower, you wouldn't have been so quick to demonstrate what a fucking idiot you are to the world.
maybe dropped the childish personal attacks and distortion of others' words while you're at it and you'd have something approaching a mature conversation.
Fuck you, asshole. You use the same language and tone anytime someone calls Masnick out on his blatant piracy apologist bullshit. Get lost.
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You didn't write it, but you agreed with the guy who did. He said "the idea that [Techdirt], or McCarthy's site, cost 50 times as much seems suspicious to me." To this, you replied: "Of course it's suspicious, because it's blatantly untrue. Masnick knows it too."
When confronted with "you're positive that our hosting bills are low", you said: "Please post the quote of me saying that. You can't. Because I never said that."
Conclusion: You are a liar.
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If you don't like getting confused with the other childish idiots who post anonymously to avoid having their word accounted for, feel free. Until then, you all look the same to me.
"maybe dropped the childish personal attack"
"Fuck you, asshole."
Yes, you showed me how mature and not prone to personal attacks you are :rolls eyes: Are you 12 or just that stupid?
"Get lost."
I wish you people would when adults are talking.
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[citation needed]
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"Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?"
The juror who came up with that ridiculous question probably has a better grasp of reasoned thinking than AC.
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Interesting to know that $350,000 is considered a dismal payment in the pirate world...
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Compared to the bullshit numbers you people tend to throw around, it's barely a percentage point.
Anyway, it just shows you can't be bothered to either read or take in any of the words actually spoken to people again, so I'll repeat from a point earlier - this was $350k TOTAL. That's $70k/year over 5 years, minus costs which were probably thousands of dollars per month. Or, less than a medium level sysadmin can earn after taxes in a standard job.
It's not necessarily pocket change, but nobody's getting rich off it either. Which makes your usual claims of laughable. This is the best you've got? The people you need to attack because they're making money from infringement are barely getting paid as well as your average cubicle jockey? please.
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So you are here? To entertain us? Increase traffic and Mikes' revenues?
All for free?
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Which again clearly demonstrates who's the really sociopath here. Thanks.
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While I am willing to agree that Mike often downplays the financial success of "pirate sites", you're missing the point to attack Mike for the wrong reason.
Making money within the scope of the law is not illegal. As long as linking to content is legal then "pirate sites" like this are perfectly LEGAL. So if you are upset that someone is making a profit legally then I have no idea what to say to that.
I'm with you on the profit angle. I'm sure there is significant income in these sites, which is why there are so many, and as long as they are legal they are not going away. Many of the better ones have already moved out of the US, which by the way is an ACTUAL loss to the US economy.
The industry likes to talk about lost sales, but the only ACTUAL loss that can be accurately quantified is the money that is ACTUALLY made by a business that felt better off out of the US, since that is money that should have been in the economy.
Seems like the only giant douches are the ones who don't seem to realize they are attacking legal websites. Let me help you out. It's like arresting a guy for walking down the street wearing a sign that says "Give me a dollar and I will tell you wear to buy tax free cigarettes for $2.00 per pack". The guy doesn't own or sell the illegal items, he just knows where to get them and is charging for that knowledge. In your world the cops arrest him and send him to jail while wondering where the illegal cigarettes are.
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Huh? The embedded document above says that he forfeits the $351K "representing the proceeds that you personally obtained as a result of the offenses alleged in Counts One and Two of the indictment." This money is exactly the revenue of the site. And of course it's a pirate site. How is it not?
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How is a site that doesn't host content a "pirate site"? They have no pirated content.
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Over five years. So, $70k per year. Given the size of the site, it's likely that it cost him about $5k per month to keep running anyway... so he probably made about nothing total when you net it all out.
But, yes, considering just how much "piracy" you guys claim is happening, and that this was supposedly one of the biggest sites out there, and ALL it could do was bring it approximately $70k per year gross... it proves the point I was making. There is NOT much money in ads.
But, of course, since you don't understand internet advertising, you don't get it.
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@Mike... I think Mark Bennett stated it best on how to deal with these sort of individuals. Just an idea, though I think rule #9 is quite apt here.
Rule 9: The crazy (BPD) person sees any outcome as vindication.
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The irony of you using these words is incredible.
Pathological: (informal) compulsive, obsessive
Sociopath: a person with a personality disorder manifesting itself in extreme antisocial attitudes...
Repeating yourself ad nauseum in an extremely rude manner sums up your behaviour nicely.
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Cheerleading the exploitation and disenfranchisement of creators is without question anti-social behavior.
The description stands because the description is correct. Try taking your blinders off some time.
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Says whom?
In fact there is a good argument the other way. See if a part of society, lets be generous and say 5% are creators who are somehow - and thats highly subjective - being disenfranchised and exploited , which leaves 95% of the other part of society then thinking the legalities and ethics of that 5% are highly questionable, and for one person (Mike) to then allegedly 'cheerlead' (is that even a real word) that philosophy and ethical argument.
Then the anti-social behaviour then falls unto the actual 5% instead of the REST of society.
See your problem is you think black and white, you haven't had the experience in both years and knowledge of understanding that that is not how the world operates anymore no matter how much you stomp your feet and say "but its the law. Laws only ioperate and are manageable and more to the point enforceable when society themselves allow them to be. if the majority of society, and that is now happening, say NO we disagree that the 'law(s)' as they now stand need to be both modernised and be made more equitable, then well though you might claw and whine and complain and have a few 'wins' at the start, history shows that society like the universe is under constant flux (change) and you either evolve with it or die (in the non literal sense).
Your choice.. that's called freedom
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I've yet to see you offer even a shred of proof that anything Mike's said has been a lie, i.e. he knew what he was saying was untrue. Just because you don't agree with something doesn't make it a lie.
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...and most of the things these people attack as "lies" turn out to be the unvarnished truth.
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It DOES have significant results
> based on the RIAA and MPAA's questionable claims of infringement
> is increasingly looking like a complete disaster without any significant results.
It's a complete disaster alright.
But it does have significant results. It greatly undermines the copyright maximalist's credibility and leads to re-thinking just what action, if any, is appropriate.
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I love when you mention me in an article in your passive-aggressive way of saying, "I win. Na na ha." He didn't win. This in no way affirms your silly claim that what he did wasn't illegal. It's totally illegal. That's why he has to pay the money back (hello, unjust enrichment.)
If you look at the docket on PACER, you'll see that the reason his case was delayed time and again is because he was receiving psychiatric help. Obviously this kid has mental issues, and that's why the DOJ is giving him a break.
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So what was it? Was in classified as mental incapax or was there some other reason other than the one your theory, which though plausible doesn't fully hold up under scrutiny, dictates?
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Citation needed
http://news.cnet.com/8301-13578_3-57485976-38/embedding-copyright-infringing-video-is-n ot-a-crime-court-rules/
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Re: Citation needed
http://news.cnet.com/8301-13578_3-57485976-38/embedding-copyright-infringing-video-is-n ot-a-crime-court-rules/
Whoever wrote that article is clueless. That's not what the Seventh Circuit held in the Flava Works case.
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Re: Re: Citation needed
- The "infringers" were people uploading material in breach of copyright. There was no evidence these were myVidster users, nor evidence of a link between such people and myVidster, nor that myVidster "contributed" or incentivized this behavior.
- The myVidster user viewing such material online is not engaging in copyright infringement, any more than a person "sneaking into a movie theater to watch a movie without buying a ticket" is infringing copyright by seeing the movie: - "That is a bad thing to do (in either case) but it is not copyright infringement".
- The "typical" definition of a "contributory" infringer is unhelpful, insofar as it allows that a person "may" be held liable (and presumptively therefore may not in some cases be held liable), does not define "materially" and does not distinguish "cause" from "contribute". The definition of Bender v West Publishing and Perfect 10 v. Amazon is preferable for legal certainty: "personal conduct that encourages or assists the infringement". However there is no evidence that conduct by myVidster increases the amount of infringement (for example by myVidster users further copying those videos they view by means of myVidster).
- Alleged financial loss of Flava (if proven) is not evidence of contributory infringement by myVidster.
- Similarly, non-compliance with Digital Millennium Copyright Act (DMCA) safe harbor and takedown processes is not evidence of wrongdoing: - "a noninfringer doesn't need safe harbor".
- There are practical and social objections to "stretching the concept of contributory infringement far enough to make a social bookmarking service a policeman of copyright law".
- Legislative mention of "referring or linking users to an online location containing infringing material" (DMCA) is not by itself evidence of infringement; overwhelmingly the vast majority of targets of the vast majority of links on the internet are to displayed content which is copyright, and capable of being infringed or an infringement if inappropriately accessed.[Note 1] web page background images background images or sounds, or other third party creations. The more plausible interpretation of the clause is a desire to make safe harbor as wide as possible, and not to make the scope of infringement as wide as possible.
- Knowing that some of the many links on its site are infringing, does not cause myVidster to be a contributory infringer; any infringement is unencouraged and the link, or any social benefit as a theory of liability is very tenuous.
- Flava was only able to locate 300 bookmarks (of 1.2 million on the site) which it claimed linked to its material. Of these it is unknown what viewing took place, and myVidster was certainly not the sole route of awareness of the links. Flava claimed a large amount of lost revenue but there is no evidence of the time this took place, or its cause (including means of "lost sales"), and there is no clear evidence of myVidster having been responsible for any specific amount of this, short of complete speculation: - "myVidster may have very little - even nothing - to do with Flavas financial troubles". Further, Flava "[had not shown] that myVidster's service really does contribute significantly to infringement of Flava's copyright".
- A joint brief by Google and Facebook analyzed myVidster as being at best a tertiary infringer, if even that, a position not recognized as liable in any current theory of law - indeed the law does not recognize "secondary" infringement either. It recognizes three positions: direct infringement, contributory infringement, and non-infringement.
- myVidster was also not responsible for any performance "publicly". While arguably at infringement "performance by uploading" took place, this was not related to myVidster. On watching, myVidster users received the media directly via a third party (myVidster "did not touch the data stream") and the "performance" was neither "public" nor "performed" by myVidster. (By analogy, when a newspaper states a play is on, and provides directions to where it may be seen, it is not thereby "performing" them or causing them to be "performed") To decide otherwise would "blur the distinction between direct and contributory infringement" to an inappropriate level.
- Unlike "swap meets" where commercial benefit was expected to flow, myVidster did not seek to achieve commercial benefit by promoting infringing activity. (A previous and closed "premium" service whereby myVidster offered backup services for users had done so but was no longer active)
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Re: Re: Re: Citation needed
Google and Facebook filed an amicus brief in the Flava Works case that explains:Source: http://docs.justia.com/cases/federal/appellate-courts/ca7/11-3190/17/0.pdf
The fact that Google and Facebook acknowledge that sites with user embeds can be liable for infringement should tell you that it's true, since they would surely deny it if they could given how much liability they themselves potentially face. That amicus brief only discusses indirect liability, but there's good arguments for why such actions could be considered direct infringement. In the end it doesn't matter: a direct infringer is liable just the same as an indirect infringer.
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Re: Re: Re: Re: Citation needed
They might be liable for infringement, or they might not. Case law in that regard is far from settled. As for Google and Facebook's amicus briefs, they are altogether useless in determining whether or not linking to infringing content is itself infringing. Only the courts can do that.
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Re: Re: Re: Re: Re: Citation needed
If they know about the infringement and do nothing, then they are liable. The case law is more settled than you think. Given your responses so far, I can tell you aren't that knowledgeable on the subject. Pointing out that courts make the determination is true, but the fact that you think that's an argument just makes you look bad. You're missing the point which is that Google and Facebook are accurately stating the law. The Seventh Circuit in Flava Works is clear that embedding infringing videos is infringement. About that there is no doubt. The issue there was whether the website operator would be liable for videos embedded by users. That's not the case with McCarthy, who, as I mentioned, embedded the videos himself.
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Re: Re: Re: Re: Re: Re: Citation needed
No. The fact that you think Google and Facebook's amicus briefs are in any way whatsoever useful in determining what constitutes infringement makes you look bad.
Where's your citation?
Again, from the case: "a noninfringer doesn't need safe harbor".
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Re: Re: Re: Re: Re: Re: Re: Citation needed
The Supreme Court addressed contributory and vicarious liability in Sony and Grokster:Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984). Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 929-31 (2005).
No. The fact that you think Google and Facebook's amicus briefs are in any way whatsoever useful in determining what constitutes infringement makes you look bad.
Please explain how their recital of the law is incorrect. Let's start there before we discuss Flava Works directly. I have a feeling I'm just wasting my time with you since you don't seem to know what you're talking about.
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First of all, it's not a "recital of the law" but an interpretation. I'm saying Google and Facebook's interpretation of the law is altogether irrelevant here. I would no more depend on them to determine what's illegal than you would depend on me to do determine what's not.
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They show that there's indirect liability in copyright generally. If an embedder either encourages or contributes to an infringement by embedding, then they are a contributory infringer. If an embedder has the right and ability to control the infringement and directly profits from it, then they are a vicarious infringer. The general principles of indirect infringement apply in general.
First of all, it's not a "recital of the law" but an interpretation.
How is their interpretation wrong? You haven't explained why it's wrong.
I'm saying Google and Facebook's interpretation of the law is altogether irrelevant here.
It's highly relevant to the issue of whether an embedder is an infringer. They explain why they are. You have yet to explain how their interpretation is incorrect. What other interpretation is there, and how do you arrive at it? What are your sources?
I would no more depend on them to determine what's illegal than you would depend on me to do determine what's not.
Yes, a court would ultimately decide the issue, and we are not courts. We've been over that. It's obvious. That doesn't mean that we can't discuss the actual law and apply it to these facts in an intelligent way. Well, I can anyway. Can you?
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Judging by your numerous ad-hominems, you most certainly cannot.
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I'll just go ahead and address your point. The court of appeals there is referring only to the reproduction-distribution rights. That's a different analysis since embedding and streaming videos implicates the public performance right, not the reproduction-distribution rights. Later on in the opinion, the court of appeals addresses the public performance right. That's the part you should be looking at. Here with McCarthy, the issue is whether his embedding violated the public performance right. I think it clearly does under Flava Works, as well as under other appellate level cases like Perfect 10 v. Amazon.com.
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There are technical ways to not let others embed it, so not using those must be considered as implied authorization.
Further no court have ruled that linking only is any type of crime it must be accompanied by other factors.
You seem to believe you can come here call anyone a thief and therefore since they are all thieves they should face the law according to your disturbed/distorted interpretation of those.
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WOW. Prior thread ran to 333 comments! Them were the days, huh?
Anyhoo, while admittedly skimmed, I skim adequately, and picked out what I think is the CENTER OF CONTROVERSY. It occurred to me from this quote:
"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws." ~Ayn Rand
Obviously fanboy-pirates claim they're entirely innocent.
Obviously "copyright maximalists" (of which I'm accused) would say that the downloader IS guilty.
I'm not doing "truth lies in the middle" BUT am forced to agree with the latter point: CLEARLY the content belongs to someone else, doesn't matter HOW indirect you use it (on your site) or get it onto your computer. It just simply AIN'T YOURS.
I hold that their own knowledge of guilt is what causes so much pirate protest.
My position is: don't want pirates just looting as they feel like (that way lies anarchy), but do want corporate power (and profits) limited by the OLD copyright terms, and only proportional punishments for the symbiotic infringement.
As this guy was profiting fairly well, take all that away, and being through the wringer is about right for the rest.
Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where Mike sez: uploader + file host + links site + downloader = perfectly "legal" symbiotic piracy.
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Re: WOW. Prior thread ran to 333 comments! Them were the days, huh?
It's not the pirate protest that matters. They are pirates.
A lot of non pirates are also protesting. What about them?
Are you deaf to the concerns about being falsely accused of piracy, not convicted, then punished, with no due process, and then having to pay money to appeal? Why don't you actually talk about that. It is a real concern.
There are many other legitimate concerns raised by non pirates. But let's just talk about that one for now.
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Re: Re: WOW. Prior thread ran to 333 comments! Them were the days, huh?
No there aren't.
Besides pro-piracy lawbreakers and greedy businesses looking to make money off infringement, no one is protesting.
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Re: Re: Re: WOW. Prior thread ran to 333 comments! Them were the days, huh?
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Re: Re: Re: WOW. Prior thread ran to 333 comments! Them were the days, huh?
Just because you say it is so does not make truth, and little of truth ever seems to pass your lips.
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Re: Re: Re: Re: WOW. Prior thread ran to 333 comments! Them were the days, huh?
To these people, complaining about any copyright law means you must be a pirate, because there's no other possible explanation. It's convenient, because then they don't need any evidence.
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Re: Re: Re: WOW. Prior thread ran to 333 comments! Them were the days, huh?
But no, you wouldn't care, because anyone who doesn't suck the Great Cock of Copyright must be a filthy pirate, no exceptions.
How's that amnesty campaign for Evan Stone and Brett Gibbs coming along?
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Re: Re: Re: WOW. Prior thread ran to 333 comments! Them were the days, huh?
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Re: WOW. Prior thread ran to 333 comments! Them were the days, huh?
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Content "belongs" to the public
The content isn't yours, but it also isn't theirs. It belongs to the public. The copyright holder only has a government-granted privilege to do certain things on an exclusive basis.
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Wow, are you the biggest lying slimeball on the net or what?
Seriously, go die in a fire, Masnick.
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Which means you knew that claiming it cost 5 grand a month to run the site was a lie when you wrote it.
No gutter is too deep for Mike Masnick to wallow in when it comes to defending piracy.
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Nope. It's pretty accurate. I pay those bills, I know.
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You obviously have no fucking clue how much it costs to run a website. Ask the guys at Slashdot how much it costs them someday. Make Mike's bills will appear insignificant in comparison.
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I think that is probably why the DOJ also settled with Richard O'Dewyer as well. I do think the the copyright maximalists want to keep this issue out of the Supreme Court as long as they can, at least until something like ACTA or TPP comes into force.
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