Grooveshark Loses Latest Round In Court, In A Ruling That Could Gut The DMCA's Safe Harbors
from the letter-and-spirit dept
The last big news in the ongoing fight between Universal Music Group and Grooveshark (and its parent company Escape Media) came back in July, when a New York court rejected UMG's argument that the DMCA's safe harbors didn't apply to pre-1972 sound recordings, because, technically, those recordings are not covered by federal copyright law. This was in keeping with the ruling in the fight between EMI and MP3Tunes, and seemed most consistent with the intent of DMCA safe harbors.
Naturally, UMG appealed, and in doing so made some compelling arguments about the wording of the law. The appellate court agreed, and has now issued pretty much the opposite decision: pre-1972 sound recordings are not covered by the DMCA (pdf and embedded below) and thus Grooveshark has no DMCA safe harbors for such songs.
There are a few different parts to the ruling, but the core argument is straightforward: section 301(c) of the Copyright Act explicitly states that no "rights or remedies" under common law copyright on pre-1972 recordings shall be "annulled or limited" until 2067, and it's pretty hard to argue that the DMCA doesn't do that:
Initially, it is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act. Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG’s rights, and an implicit modification of the plain language of section 301(c). The word “limit” in 301(c) is unqualified, so defendant’s argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act.
For defendant to prevail, we would have to conclude that Congress intended to modify section 301(c) when it enacted the DMCA. However, applying the rules of construction set forth above, there is no reason to conclude that Congress recognized a limitation on common-law copyrights posed by the DMCA but intended to implicitly dilute section 301(c) nonetheless.
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Under such circumstances, it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat.
Take note of that last bit, because this ruling has made it more true than ever. And that's where the problems come in. It seems pretty clear that there is some sloppy drafting in how the DMCA is written (which isn't a surprise), in that what you have is wording that can be read this way, even though it clearly goes against the intent and purpose of the DMCA. If the DMCA's safe harbors don't apply to pre-1972 recordings, then the DMCA's safe harbors no longer apply at all to any service that includes music. That can't be what Congress intended, even if the wording of the law can be read that way.
Thus, if you go strictly by the wording, while ignoring the intent, the logic of the decision is sound, but the implications are disturbing: as Grooveshark pointed out in their defense, this interpretation would gut the DMCA. One of the key purposes of safe harbors was to prevent online services from needing to proactively scan for infringing works, since that would drastically and unfairly limit their growth, and we wouldn't have things like YouTube today if that were the case. But if pre-1972 recordings (which is plenty of material) are not included, then user-generated content sites do have to scan everything. And while it might be somewhat easier to identify pre-1972 recordings than it is to identify infringing uploads, it would still be insanely prohibitive — not to mention the massive loss to our culture from having a huge chunk of music history mostly vanish from the internet.
It's a little unclear just how far-reaching this ruling will be (it's at the state level, and it is in itself explicitly contradicting the earlier MP3Tunes ruling, which it declares to be "wrongly decided") but the potential implications are huge. Exempting all pre-1972 recordings from the DMCA would impact all corners of the internet in a bad, bad way. The only optimistic thought is that perhaps it would force congress to revisit the law, and we could finally push for a Digital Millennium Copyright Act that actually works in the digital millennium.
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Filed Under: dmca
Companies: emi, escape media, grooveshark, mp3tunes, umg
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Oh wait, that's exactly what every copyright maximalist wants, so long as it's retroactively improving their side of the deal and not the other way around.
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I can't understand why anything at all needs copy protection.
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Because sabotaging the past helps present sales
No, I don't support sabotaging the public domain. But this is a reason the maximalists support but will never admit.
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Re: Because sabotaging the past helps present sales
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Re: Re: Because sabotaging the past helps present sales
A maximalist believes everyone has a fat wallet and endless supply of cash just like they do!
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Re: Because sabotaging the past helps present sales
That's kind of how things are right now, since most pre-2014 music is already 'public domain' by nature of the internet.
I agree, though, that older music being free is a hindrance to newer musicians. I always think of Led Zeppelin and how it's very hard for up and coming bands to even make a name for themselves by giving away their catalog, which they've most likely recorded on a shoestring budget, when paying for Led Zeppelin albums (produced by highly specialized professionals) is merely an option.
When I first started releasing music I was able to get my foot in a lot of doors by undercutting major release prices. In the days $18.99 CDs I would sell to local record stores at massive discounts, so that they could charge maybe $7 to $10, leaving themselves with a $6 to $8 margin, which is much wider than what they got from selling current 'major' or 'major indie' releases. It encouraged the owners to promote the music in-store since they profited much more than average from my releases.
These days, I wouldn't even know where to begin trying to promote in a similarly passive manner. Hey kid! Don't spend "no dollars" downloading that awesome .flac rip of the entire Beatles discography, download my melodic but poorly recorded bedroom rambling... for the low low price of "no dollars!"
Personally, I couldn't care less about what the labels do with their old catalog. I almost wish they could force people to pay for Beatles and Stones albums. Lock the Led Zeppelin masters up in a vault and charge people $10,000 to listen; I don't care. Just get these dinosaurs out of the way and let newer voices climb above the fray.
Don't get me wrong, I love the old stuff. Obviously, it's still in demand, and who's going to argue with the audience? However, I feel like our culture, particularly internet groupthink, has become obsessed with the past. Life has become a museum, slowly creeping towards mausoleum. Let the past die, these are not our stories. It's OK to forget things. It may even be crucial that we do forget much of the trivial past. Every piece of garbage does not "tell a story," as I heard one bobble head tell it. Stories tell stories. It's absolutely crucial to improving musical culture to get our collective asses out of the fucking sixties(!) already.
So yeah, part of me says, "Let 'em have their forever-less-a-day copyright!" Please. And IN PARTICULAR: take Steely Dan with you. Some culture needs to be locked away.
Now, s'cuse me while I un-ironically put on some Hendrix.
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Re: Re: Because sabotaging the past helps present sales
Boy, even that law occupation is going to be a bust soon in the realm of copyright. "You tellin' me I can't talk right now?" Good one.
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Re: Re: Because sabotaging the past helps present sales
The last fifteen years has been nothing but exploring all the stuff that has been locked up in corporate vaults for decades, freed by the likes of Youtube. That's why we have all these remixes, remakes, and reboots.
It's not just the famous stuff like the Beatles back catalog. It's all the Beatles-wannabes that everyone forgot about. It's all the rare recordings and bootlegs that once were hard to find but now are plentiful. It's the television appearances that someone happened to have on VHS and was able to share with the world, because the the TV networks can't figure out how to make that stuff available.
There's absolutely no commercial value to 99.9% of pre-1972 culture, but we lock it all up to protect .1% of the stuff that people will still buy.
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Uh... it's a mistake to rely upon the DMCA
That hasn't worked for anyone, except perhaps for Google. The difference with Google/YouTube is that Google has a legit ad business that's minting money. For some insane reason they choose to use it to stave off legal assaults on YouTube and their Book piracy instead of simply coming to their senses. Why they don't want to share the revenue with the artists who made it possible is beyond me.
The biggest problem that Grooveshark has is that they don't have any revenue to pay the lawyers. And why is that? Because they're listening to some of the loons around here who think that you can give away everything for free and somehow cash big checks.
The DMCA is irrelevant to this. The problem they have is the absense of a business model where people pay them real money. Not "reputation". Not "t-shirts". But real cash they can use to keep the lights on and the lawyers loyal.
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Thus, if you go strictly by the wording, while ignoring the intent, the logic of the decision is sound, buts the implications are disturbing: as Grooveshark pointed out in their defense, this interpretation would gut the DMCA.
So some amorphous intent that you haven't even demonstrated to exist should control over the plain language of the Act? That's not how it works.
One of the key purposes of safe harbors was to prevent online services from needing to proactively scan for infringing works, since that would drastically and unfairly limit their growth, and we wouldn't have things like YouTube today if that were the case.
512(m)'s provision about no duty to monitor merely codified the common law rule that there's no duty to monitor. You haven't demonstrated that this ruling means there is a duty to monitor, and that's easily explained by the fact that there is none.
But if pre-1972 recordings (which is plenty of material) are not included, then user-generated content sites do have to scan everything.
Total FUD that you made up and that you can't prove exists because it doesn't.
Exempting all pre-1972 recordings from the DMCA would impact all corners of the internet in a bad, bad way.
"Bad, bad way." LOL! Straight from Pirate Mike's handbook of bullshit, baseless FUD. Your master has taught you well. You should teach him how to rap in your patented mediocre style.
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*sigh*
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My point is that the safe harbors don't provide much (if any) protection that the common law didn't already protect. The 512(c) safe harbors were merely a codification of the Netcom decision (plus a few others, with some minor differences). Absent the safe harbors you still have Netcom and its progeny which are quite protective of truly innocent service providers.
To your point about monitoring, I don't see how taking away the safe harbors changes much, since, for contributory liability, there still has to be knowledge (actual or constructive). A service provider wouldn't be liable under the common law absent knowledge just the same as he would not be liable under the DMCA. Maybe I'm missing something?
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According to the Senate report on the DMCA, the intent was that the safe harbors section "provides greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities."
In other words, the 512(c) safe harbor doesn't relieve anyone of liability who would have been liable in the absence of 512(c).
And, unsurprisingly, you're absolutely wrong. Let's take a look at the House report on the DMCA:
So, no, it's not simply codifying the Netcom decision, nor common law notions of liability in general.
On the other hand, the Senate report doesn't mention Netcom at all, nor does it indicate at any point that it's simply codifying any existing case law. In fact, it makes it clear that the limitations on liability are entirely distinct from any limitations on liability that arise under case law:
The Senate report also seems to directly contradict the court's ruling in this case. The report makes it clear that section 512 is not "a limitation" on copyright rights, as it "does not create any new exceptions to the exclusive rights under copyright law."
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Out of nowhere, Verizon steps in as a very concerned third party, pushing for the safe harbors.
I know AJ loves to push the idea that Google was powerful enough to push for this, but these safe harbors were a mainstay of Verizon when it was actually concerned about itself (it helped the public immensely but it didn't protect anyone more than not passing the DMCA would have done).
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Good for you, Karl. You made an effort to find a part of the congressional record. That's more effort than Marcus could muster; while purporting to represent what it said, he couldn't even be bothered to find the text. Too bad that section of the record says nothing about pre-1972 sound recordings, and it does nothing whatsoever to back up Marcus's point that the DMCA was intended to cover such recordings. Try again?
And, unsurprisingly, you're absolutely wrong. Let's take a look at the House report on the DMCA: ***
Why are you looking at 512(a)? We'll talking about Grooveshark, so 512(c) is what we're looking at. Try again?
On the other hand, the Senate report doesn't mention Netcom at all, nor does it indicate at any point that it's simply codifying any existing case law. In fact, it makes it clear that the limitations on liability are entirely distinct from any limitations on liability that arise under case law: ***
All that's saying is that the common law is left intact. More often than not, though, a case turns on whether the 512 safe harbors apply to the defendant or not. If they do, the case is typically over. If not, then use the common law to analyze liability. Not sure what your point is with this either. Try again?
The Senate report also seems to directly contradict the court's ruling in this case. The report makes it clear that section 512 is not "a limitation" on copyright rights, as it "does not create any new exceptions to the exclusive rights under copyright law."
512 is a limitation on LIABILITIES, not RIGHTS. The title of the section should clue you in: "Limitations on liability relating to material online." 512 limits the defendant's potential liabilities, not the plaintiff's rights. Try again?
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You say that as if there is any other kind.
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It's that bad. Seriously.
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The other streaming services should show solidarity
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Why isn't safe harbors a given?
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Re: Why isn't safe harbors a given?
You do if you are the various Big Media/*iaa companies and the weed is copyrighted.
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If these internet "businesses" have to rely on infringement, then they clearly have a bad business model. Duh. Not my problem that they're idiots.
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Tell that to crack house owners or the guy who rents motel rooms by the hour. Guess how many malls get sued successfully every year over abductions, assaults and other crimes?
Wishing something was true doesn't make it true.... except here on Techdirt.
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That sounds like a line from an old gangster movie - "No one's talkin' about killin'. We're just going to take all your oxygen away, see."
How is suing Grooveshark for 17 billion dollars not equivalent to trying to shut the business down?
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Any kind of revision talk is just pure FUD to Mister Joe.
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In addition, there has been known criminal activity by these same companies, from fraud to accessory to assault and battery to aiding and abetting, embezzlement and theft.
So you tell me man, why do you hate the downloaders so much, when you should be going after the uploaders?
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I mean, it can't be 'has potentially infringing/illegal content in it's service', as by that logic you would have to shut down the post office, phone lines, roads, and any other service that might traffic in infringing/illegal goods, just as sites that accept user created content might have infringing content on their site.
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Indefensible
The need to regulate may be strong, but it's like dealing with lightning. Your chances of getting hit by these bolts are incredibly low.
The consequences of trying to shut off the internet will reach these people far more than anything they do to try to control it though...
Just think about it... They spend the money for their monopoly position and they ignore the competition underneath them. They ignore the Kickstarters and entertainments that people actually enjoy. They are losing more revenue by not providing the public with new services. Eventually, they will have a disruption that they've never seen coming. Whether that's from gaming companies usurping their position as the largest companies or Google Fiber creating even faster broadband without the spyware (stop laughing), the disruption will change their tune the same as a new president that doesn't take corporate bribes from being a left wing president similar to FDR.
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Re: Indefensible
The problem with third party liability is that it turns any site that accepts user postings into a publisher, with all the requirements for due diligence before publishing the submission. The volume of material published to the Internet drops dramatically under these conditions. Also conversations on site like this are slowed down, because of the need to vet all posts, because you can bet that a text version of a url will also count as a link, as it can be used via cut and paste.
The Internet is vulnerable to this sort of attack, because it has become a client server system, and the service providers who provide the servers , and services can be attacked.
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You're right. It's self-censorship. You should not have to check with anyone for your post to be written and now you're asking for a system where people MUST self censor in order to produce content. That is beyond absurd.
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That understandable but moronic interpretation of the law has made any and all services where users can upload sound effectively lose DMCA protection, as it's just a matter of time before someone uploads pre-1972 sounds. Grooveshark, illegal. Youtube, illegal. Apple's clous storage, illegal. Google mail, illegal.
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I don't know about that. The Gun Control Act of 1968 does not cover guns made before 1899. So anyone can buy a fully functioning cartridge firing firearm like a Mauser rifle, Smith & Wesson .38 revolver without any legal encumbrance whatsoever,
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The whole point of DMCA safe harbors was to carve out a clear liability exception for service providers. A key component of that is that there is no duty to proactively monitor.
But if not all recordings are covered, safe harbors accomplish nothing and serve no purpose. The service provider does become liable for pre-1972 infringing works, and it does become their duty to proactively look for and eliminate them -- which means looking through all works uploaded to the service.
Imagine, as a weird hypothetical to extend on your comparison, the Gun Control Act were amended (the same way the DMCA amended the Copyright Act) to state that pawn shops can buy and sell guns in sealed, unmarked containers without looking inside them (i'm not sure if that makes any sense legally but I'm stretching a bit to make the comparison). Now imagine a court said that's true, BUT it can't apply to pre-1899 guns since the GCA doesn't apply to those, so you still have to open those boxes. But there's no way to tell which boxes have pre-1899 guns and which ones don't. Thus the new provision is effectively useless.
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What we agree on is that if you wish to avoid being sued, you better start proactively monitoring. That's fine with me as now the grifters can no longer wash their hands in the Holy Water and claim that their willful blindness is legit.
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No, those exemptions were put in place to explicitly protect a service provider (or hosting site) in cases where someone, like a shitheel like you for instance, might do something like upload a copyrighted work, then turn around and sue said site over the violation. Because of the action of one of its users (you, the shitheel, in this case) the site would be liable even if it had no knowledge of the specifics of what its users were uploading. If you can't or won't see how removing this harbor would seriously damage the internet and all it does, then you no longer need to open your yaphole to speak about these matters, as you obviously do not understand (or care. funny how "willfull blindness" is perfectly acceptable here, but a CRIME if it's the service provider who doesn't know (and doesn't try to know) what is uploaded to their site.)) how the very internet you are using to spew your specious garbage actually works.
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It seems like the way around this conundrum is to hold and verify uploads before publication. Like TD sometimes holds comments for moderation. I don't see how monitoring "seriously damages the internet". Maybe you can explain the mayhem you think will result.
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Massive amounts of data is posted every single minute, and the idea that all or even a significant chunk of that could be reviewed to make sure it's not infringing or breaking some law is completely insane, and that's going off of the best case scenario, that it's easy to spot what is and is not an infringing/illegal file/video/song, which it most certainly is not a lot of the time, as demonstrated by all the completely bogus DMCA claims targeting anything and everything.
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Imagine what it would be like if it was all new instead of being all duplicates of copyright material. Wow.
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Tell me how sites would be able to check the BILLIONS of user generated works that are produced every day? Without going into some sort of horrendous queue where you take a photo, upload it but it's only available to view five years later.
There's a lot more content floating around the intertubez than just Hollywood movies. A LOT MORE.
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User generated content, in terms of number of files is huge. In terms of piracy and storage on a file locker, it's a blip. Why would anyone use a file locker for what is better done through social networking? More importantly, how much money would a hosting company make charging access to your cell phone snaps and videos? Unless you are porking hollywood celebs, I doubt anyone would pay.
The business models tell the story. If they are charging to access instead of charging to store data, then they are betting that your data has value to a wide audience.
A site like facebook can check the source of an image pretty quickly as it's encoded in the image if you took it with your smartphone. They have minimal risk here. Clearly, a photograph taken today isn't going to violate a sound recording copyright from before 1972, right?
It seems like your point is not making sense.
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That is exactly what publishers, labels and studios do, and it is not illegal.
That does not tell them whether or not it is a photograph that infringes copyright, or whether the photo or movie was actually created on the phone.
You seem to think web sites should be able to detect copyright infringement by magic, when the owners of copyright cannot reliably identify their own works.
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The biggests datasets in the world are about climate and census, scientists all over the world transfer zetabytes of information each and every year.
People use those databases to see population density, calculate property value, project crop yields, planing etc.
Entertainment is just a drop in the bucket as this video tells you.
The Relative Size of Internet Data
or this one.
Largest Databases in the World
I dare you plot the data and see what it comes out of it, you be surprised to know that the internet traffic by a majority is not about entertainment but useful data that goes out to everyone every second.
So to answer you question about what it would be like, I guess it would be a more productive and useful internet that already is.
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It's exactly what you said. You just didn't know you were saying it at the time because, as I said, you have no idea how the internet works.
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I mean, you do have a responsibility to make yourself not sound like an asshat.
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First, who verifies?
Second, how? There is no such thing as a central copyright database.
Third, this ignores fair use/fair dealing.
Fourth, this ignores orphan works.
Fifth, this would be a massive curtailment of free speech. This sorta happened to me a few months ago. I uploaded a video I had shot myself back in February of 2012, applied to earn money through ads, but only recently heard back. I was rejected. I suppose I could have registered my copyright but I didn't feel like it. Now, in the sense of ads, I can see why I got rejected, but your argument is over the making of speech. Imagine if I had to wait that long just to upload and publish the video at all. There's tens of billions of works uploaded every week, all created by the common people and not a one of those people would take the time to register.
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The biggest dataset in the world is census data did you know that?
Zetabites of information flowing and not all are entertainment, so for a minor part of it you want to spoil everything what a nice guy you are.
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You seem to have no concept of how much data is uploaded to the Internet every minute. The volume is literally impossible to monitor.
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Guess what? That's not my fucking problem. Sounds like a faulty business model amongst the grifters. Maybe they need to adapt? Step 2, anyone?
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You're right, let's kill the internet since it's too big for any one entity to monitor at all times. Next we can move on to video tapes since there are too many of them to monitor at all times
Maybe when we're bashing on stones in a cave, much like you would enjoy of course, we can outlaw cave paintings because there would be too many of them to monitor as well.
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Verify...yeah, either Youtube can somehow verify the 40 hours of video uploaded per minute, or it puts everything into a queue. Have footage of a cop gone bad? Well get in line buster! Looks like...we have a spot open two years from now! And even if someone looks at it...what are they supposed to do? They can't determine if its infringing. What's that? You didn't register the copyright? Well, to make sure Google retains its safe harbours, since there's no registration, an automatic rejection it is!
Jeebus...the amount of harm you want the rest of the world to suffer just so your failing business model can last a bit longer, even after all the evidence Techdirt has presented.
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Then what are bitching about? Too much data is uploaded to proactively monitor and magically know which uses are infringing and which isn't. If you have a problem with that, then it *is* your problem, dipshit.
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says the people who don't want to do it. The truth is it can be done but will cut into grifters profits.
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So you're saying in fact that it can be done but Viacom and Fox don't want to do it because they're grifters and it'll cut into their pockets?
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If only I could copyright laughter. Think of millions I'd make suing the poor bastards who had the misfortune to sit in on one of your gigs.
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Did you people throw in jail another mother?
Did you people ruined another young man's life?
That is all you people do today.
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http://www.comparebusinessproducts.com/fyi/10-largest-databases-in-the-world
You are so full of shite dude.
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If you were actually intelligent, you'd like at every angle.
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Could a copyright holder pre-1972 have sued AT&T because one of their customers sang "Happy Birthday" to their relatives without permission of the copyright owner? Why not, AT&T is the service provider and thus would have the duty to monitor every phone call to make sure nobody sings "Happy Birthday" without permission. If an infringement occurred, AT&T would be required to disconnect the caller immediately to mitigate the infringement or be held liable. Was that the law then, or did it become a new power later?
I argue that the DMCA and laws like it expand the rights and remedies of the copyright holder, at least when taken as a whole. It grants copyright holders the power to issue takedowns of infringing (and non-infringing) works with very limited oversight in addition to the original power to track down the infringer through discovery and sue them directly. The safe harbor effectively allows takedowns to occur without the service provider becoming liable for that content.
Therefore, the ruling in incorrect as a matter of law the way my (nonlawyer) eyes see it.
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Yes AT&T would be liable. Youtube would be liable to Viacom, if they have anyone singing Happy Birthday in a video.
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First, whether or not on the whole copyright holders are in a stronger position post-DMCA, that's not the standard. 17 USC 301(c) states that "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067". Emph. added. The question isn't whether the total bundle of rights is stronger/weaker, but if any particular right is weaker.
Second, that "expansion" of rights you cite isn't actually an expansion. Copyright holders already had the ability to send a complaint about infringing material; the takedown notice wasn't a grant of a new right- remember, a takedown notice does not actually force a service provider to remove content. With the DMCA, takedown notices are actually much weaker for the copyright holder because now you can't sue the service provider because of the DMCA safe harbor provision. A pre-DMCA threat to a service provider to sue has leverage; a post-DMCA threat doesn't have as much.
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Who has the power?
People are much more critical of copyright today, in spite of (because of?) the ?IAA educational campaigns.
The public outrage caused by a YouTube lockdown may just cause a serious scaling back of copyright law, rather than greater compliance.
Copyright maximalists, be careful what you wish for.
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2ndly letting those who do not understand something make decisions that affect that something and the effects of that something. i'm not a doctor, so i dont make a medical diagnosis. if i knew nothing about how the internet works, i wouldn't make decisions that could break it. such is the reasoning here.
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HA! No more "safe harbors", eh, pirates?
So guess it's time to use this from Cheezburger:
https://i.chzbgr.com/maxW500/6522441728/h020FC9A1/
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Re: HA! No more "safe harbors", eh, pirates?
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Re: HA! No more "safe harbors", eh, pirates?
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Such a handy little link...
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Re: HA! No more "safe harbors", eh, pirates?
I've already done the same thing with bob, don't let me down with your future whining.
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Get ready
Crap. This decision really really really sucks.
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Re: Get ready
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But since you're anonymous, Techdirt can't vouch for the legality of the comments, thus would have to put ALL comments in a queue, and have to actively moderate each and every comment, in case someone were to infringe on copyright. All because the MPAA and the RIAA are afraid they might have to do some actual work.
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the way i see it
once this becomes a clear election issue you will see politicians acting like they did with sopa/pipa/cispa, a bunch who where for it will magically say it was never a good idea if only to keep from facing the possibility they wont get elected the next go around.
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Safe Harbors?
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Don't build your business on a single clause of a law
Maybe they should have built their business on sound business models, and not on taking advantage of one poorly thought out section of DMCA.
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So UMG can now file copyright lawsuits over recordings that aren't covered by copyright law?
Can someone please explain this bit of wisdom to me?
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Can someone please explain this bit of wisdom to me?"
They are not covered by FEDERAL copyright law. In this case they are trying to sue based on common law copyright. According to Wikipedia, "Common law copyright is also the term used in the United States to refer to most state law copyright claims." So, I guess they're suing based on a state copyright law.
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UMG claimed violations under NY state copyright for works that were not preempted by the federal statutes. Grooveshark argued it was protected under the federal DMCA safe harbor provision, but NY appellate court has now rejected that.
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Insanity
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They can do that now, in fact. Failing to follow the DMCA doesn't automatically make you liable for infringement.
But if indeed pre-1972 recordings aren't covered, then you basically have to take down all of them, whether told to or not. Otherwise, as this court makes clear, even a single pre-1972 sound recording means you can get sued.
Would you lose the lawsuit? Maybe yes, maybe no - it depends entirely on how state law determines vicarious liability. And if you win in one state, all the copyright holder has to do is bring a suit in another state with more favorable laws.
And, of course, even if you win, the costs of the lawsuits can put you out of business. Look at Veoh.
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He who lives by the sword, dies by the sword. Good bye Grooveshark, try not to bleed out on the carpet on the way out.
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No. They are service providers. Publishers and distributors pick and choose the things they publish and distribute.
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Hope the boneheads had fun while it lasted.
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Remember piracy is the scary monster in your closet LoL
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If by "any of these sites" you mean Google search, YouTube, Soundcloud, Flickr, DeviantArt, Wikipedia, Facebook, Twitter, or any site with user-generated content, then you're right.
And it's a very, very good think that they can all "skirt" liability.
Good bye Grooveshark, try not to bleed out on the carpet on the way out.
It amazes me that you think Grooveshark's death would be good in any way for content creators. They certainly have issues, but they are at least attempting to work out deals with copyright holders. (Before the deal with EMI fell through, Grooveshark had already given EMI $2.3 million - money that it wouldn't have otherwise.)
This is a perfect example of killing the goose that laid the golden eggs.
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The purpose behind the safe harbors
Well, while the DMCA did intend to shield UGC sites from monitoring obligations, "saving" this huge chunk of unlicensed music was certainly *not* the purpose of the DMCA, was it?
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Wow. So you think we should ignore the actual text of the statute and instead just go with whatever you decide promotes "culture and artistic output" best?
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In any case, it's not like lawmakers just pop a bill out of thin air without discussing its merits. Even if a law doesn't list its goal, generally the intention will be on record somewhere.
And if you can't address the intention behind a law and analyze if the law is achieving whatever goal it has, it is a bad law.
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There are no "proper licensing fees" for sound recordings. Unlike the statutory rates for songwriters, the copyright holders for sound recordings can charge whatever they like as a "license," secure in the knowledge that they have a monopoly on the recordings.
In fact, the issue with Grooveshark is that UMG apparently won't license any of their music to them, at any price.
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Not a safe harbour
I am just left thinking I have 1000+ pre-1972 music songs where it is easy enough to reencode these into a vast array of formats and to then upload these to hundreds of sites.
Then UMG can go about suing every site they want where even in a few cases complete service destruction can be had. Yes even their beloved YouTube can be attacked.
Someone needs to fix that law and to be quick about it.
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