Why Intermediary Liability Protections Matter: Our 'Copying Is Not Theft' T-Shirt May Be Collateral Damage To A Bad Court Ruling
from the where-you-place-the-liability-matters dept
Last week, as you may recall, we wrote about a bizarre situation in which print-on-demand t-shirt maker, Teespring (who we had happily used for most of our t-shirts for years), had taken down our "Copying Is Not Theft" t-shirt, first claiming that it was infringing on someone else's work (it was not). When we escalated the issue (as per their instructions), we were suddenly told it had nothing to do with infringement (despite the initial email) but because it violated their Acceptable Use Policies -- which, again, I assure you, we did not.
We had thought that, perhaps, it was a bizarre overreaction to an ongoing saga of people trying to shine a light on automated bots taking popular "this ought to be on a t-shirt" tweets and turning them into possibly infringing t-shirts. However, there's perhaps an even larger reason why various print-on-demand t-shirt companies may be a bit extra twitchy with their takedown trigger fingers lately: because of some bad court rulings that effectively removed the DMCA's safe harbor from some of these companies. Back in the summer of 2017, we wrote about a court ruling against Zazzle, one of the oldest print-on-demand operations out there. That ruling more or less said that because Zazzle prints on physical goods, that gives it the "right and ability to control the sale of products" it creates, and thus, the safe harbors no longer apply.
This is nonsensical, as it's basically saying that even though the process (user generated content) is exactly the same, the fact that it goes from a computer screen onto an actual physical good like a t-shirt, that suddenly changes the liability protection for intermediaries. That jury went on to find Zazzle owed almost $500k in awards for infringement. However, some of those awards were over $30,000, and that's the cap for non-willful infringement. The judge claimed that the infringement by Zazzle was not willful and reduced the amounts of those awards.
That ruling was appealed to the 9th Circuit which, just last month, said that the court should revisit the willfulness bit, as Zazzle's failure to stop infringement could be seen as willful. In a very short (4 pages) per curiam (i.e., no judge put their name to the opinion, but it's effectively the joint opinion of the three judges) non-published opinion. It's technically not precedential for the 9th Circuit, but it's still not good:
Recklessness can constitute willful infringement, and can be established by an infringer’s knowing reliance on obviously insufficient oversight mechanisms.... Zazzle never deviated from, or improved, its oversight system throughout the two-year period at issue, despite repeated notice of that policy’s ineffectiveness. Zazzle “knew it needed to take special care with respect to [Young’s] images,” Friedman, 833 F.3d at 1187, but never gave its content-management team a catalogue of those images provided by Young. Even after Young provided the catalogue, Zazzle continued to sell products bearing each of the works for which the jury found willful infringement. Zazzle also relied on a user-certification process it knew produced false certifications and took no action to remove a user who had marketed more than 2,000 infringing products. A reasonable jury could find willfulness on this evidence and we therefore remand for entry of judgment consistent with the jury verdict.
Basically, because Zazzle didn't magically stop all infringement (an impossible task) from its users, it can be seen as willful. As Eric Goldman points out, this kind of ruling could mean the end of all print on demand, unless Congress steps in and fixes the law.
Every subsequent printing of a user-uploaded Greg Young image trigger a statutory damages award far in excess of Zazzle’s associated revenue, so the copyright owner basically can treat Zazzle as its personal ATM, which won’t be good for Zazzle’s profit. Plus, the court’s reasoning isn’t limited to this particular copyright owner, so Zazzle will be the ATM of every other copyright owner–millions of them. How long can a business like that last?
Given all that, is it really any wonder why Teespring and probably others as well may now have a really itchy trigger finger in trying to take down anything that even has a whiff of possibly being infringing?
This is why intermediary liability protection laws matter so much. This is why we're always talking about Section 230 of the CDA and Section 512 of the DMCA. This is why we're worried about what's going to happen in the EU under the new Copyright Directive. When you put more liability on companies who host user-generated content, it becomes increasingly less worth it for them to go through the hassle. And the incentives are for them to just start taking stuff down. All the time. And the incentive is for them to not much care even if you prove that the work is not infringing. Why take that chance when, as Professor Goldman notes, a single mistake allows a copyright holder to treat them like an overflowing ATM?
For now, you can still buy our "Copying Is Not Theft" merch over at our new test store on Threadless, but we're also left wondering if any of these companies can possibly survive if the courts keep ruling this way and Congress does nothing to fix it.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cda 230, copying is not theft, dmca 512, intermediary liability, on demand printing, t-shirts, willful infringement
Companies: zazzle
Reader Comments
Subscribe: RSS
View by: Time | Thread
How is this any different than me sending a file to be printed at a Kinko's? Are they going to now fine Kinko's every time someone print's a Greg Young picture?
[ link to this | view in chronology ]
Re:
"Are they going to now fine Kinko's every time someone print's a Greg Young picture?"
There are copyright trolls (and patent trolls willing to run a sideline business) who will indeed apply that method.
Intermediary liability protection is one of those core mechanisms which ensure free speech doesn't get shut down over fear by intermediaries to carry the message. We've known for a long time it's a necessary core requirement in modern society.
This time around it was over a few T-shirts with a printed message but in principle this would apply to any physical media, which is why shit like this is far more scary than you'd think on first glance.
[ link to this | view in chronology ]
Forget Kinko's
What happens when someone puts an illicit copy of something or an illegal something -- child porn, a human 'trafficking' sex ad, whatever -- on the front steps of a courthouse?
If the mere possibility of the emplacement is all the matters, despite having rules (laws) against it makes the host liable, then the court would be liable.
Suddenly illegal graffiti could become an attack vector at almost any organization or institution!
[ link to this | view in chronology ]
Re: Forget Kinko's
"Suddenly illegal graffiti could become an attack vector at almost any organization or institution!"
Nailed it.
Intermediary liability is one of those things which are normally used as a flimsy smoke-screen by ultra-authoritarian regimes to circumvent the need for heavy-handed censorship by introducing a guaranteed chilling effect.
I think the concept was first debated and rejected millennia ago in both rome and ancient greece. The logic hasn't changed since.
[ link to this | view in chronology ]
Re: Totally Incorrect Logic
This Kinko's example is completely misplaced and shows what happens when someone just barfs out comments without knowing the details. To answer your question based on actual knowledge of the case - if you go into Kinkos and ask them to make a reproduction of a poster that has a copyright notice on it or that is obviously a copyright protected poster, then Kinkos actually knows not to accept that order. I challenge you to try. Now, let's say that Kinkos does take the order and makes the poster. Let's say that Greg Young learns about it and tells Kinkos to stop doing it. Now let's says Kinkos keeps printing Greg Young posters after being told to stop. Is that willful copyright infringement? You betcha. That's what Zazzle did. Not a stupid outcome. The right outcome.
[ link to this | view in chronology ]
…or stop hosting it in the first place. That would mean saying goodbye to practically every social interaction network, forum, and imageboard ever. (Not that such a move couldn’t have upsides, but still.)
[ link to this | view in chronology ]
Re:
Yeah, beautiful, ain't it? Put that internet genie back in the bottle where it belongs. Make big media great again!
[ link to this | view in chronology ]
My new business model.
Take a shitty picture, register the copyright. Pay some homeless person $1000 to upload it and order 50 T-shirts. Sue for willful infringement & statutory damages.
[ link to this | view in chronology ]
You forgot to say how it ends:
Lose when the scheme is uncovered. Whine about the loss on a tech blog. Get laughed at.
[ link to this | view in chronology ]
Re: You forgot to say how it ends:
How is that different than the schemes the FBI does?
…
…Oh yeah, the FBI is part of the government. Never mind.
[ link to this | view in chronology ]
Re: My new business model.
"Take a shitty picture, register the copyright. Pay some homeless person $1000 to upload it and order 50 T-shirts. Sue for willful infringement & statutory damages."
Copyright does encourage greedy opportunists to try to pull off schemes such as this with - as illustrated by ACS:Law and Prenda - varying degrees of success.
It's yet another reason to simply abolish copyright as a concept and replace it with a sensibly worded right of paternity and linkage to trademark law.
[ link to this | view in chronology ]
Re: Re: My new business model.
"It's yet another reason to simply abolish copyright as a concept and replace it with a sensibly worded right of paternity and linkage to trademark law."
Paternity.
So everyone in the software business who publishes bastardised crap can be hit with a "paternity suit" which forces them to take ownership of - and actually support for an entire generation - everything they've inflicted on us?
Interesting concept.
[ link to this | view in chronology ]
Re: Re: Re: My new business model.
"So everyone in the software business who publishes bastardised crap can be hit with a "paternity suit" which forces them to take ownership of - and actually support for an entire generation - everything they've inflicted on us?"
Interesting way of moving the goalpost.
No. Right of paternity means only one thing. As the original creator of a certain data set no one else is allowed to claim origin.
In other words it's that one bit of copyright which makes enough sense to be left alone once you axe the rest away.
You are correct only in the regard that an argument could be made that shady software vendors should be held accountable for the third-rate crap they've pushed on the rest of us. although to be fair MS is already making that jump in their sudden fervent conversion to Open Source.
[ link to this | view in chronology ]
Re: Re: Re: Re: My new business model.
[EDIT]
"Right of paternity in intellectual property means only one thing."
Fixed that for clarity.
[ link to this | view in chronology ]
Re: Re: My new business model.
What SDM says.
[ link to this | view in chronology ]
Copying of copyrighted material (except for personal use or even format shifting) IS theft. Besides, businesses are free to do whatever they want, as you so "eloquently" stated.
Intermediary liability is much stronger in the rest of the world than the US, with no Section 230, yet somehow they still have websites, and those beloved comments sections are disappearing from IMMUNE American sites. Who is to blame? The PEOPLE, for not demanding that all serious debates take place under USENET rules other than anonymity (those who want to be anonymous can get their own sites and advertise them or have "groups" that are anonymous but labeled as such).
Eliminating Section 230 wouldn't chill speech, just evil speech. With all the hatred it enables ("Just GOOGLE this person" in an attempt to incite a mob), society has been turned into a jungle where no one or business can be trusted, and which is very expensive because there is no economy of scale.
Great work is ignored, leaving its creators in poverty, while "crap" makes millions, not because of copyright maximalists, but because the PUBLIC reacts to "social proof," i.e., money they got from the people who are now impressed that their own money was taken from them. This is about as sustainable as the Enteledon.
Porch piracy has been this big evil until homeowners and police caught wind, and now traps are being set by police and homeowners, who leave things in boxes that would make even this site's posters blush. The reaction to Section 230 is to avoid being "cancelled" or worse by an angry internet mob. That's why more civilized, GUN-FREE countries like England and Australia do not grant 230-style immunity. India's Article 79 reflects pre-230 precedent in that distributor liability kicks in only when notice is given.
As for no one being punished for abusing the DMCA or copyright, the lawsuit filed by Doucette and the charges against those "troll" firms suggest otherwise.
[ link to this | view in chronology ]
Re:
Wow, literally everything you said is wrong. Cudos.
[ link to this | view in chronology ]
Re:
Your super cool new talking point is porch pirates? That’s pathetic even by your standards Chris.
[ link to this | view in chronology ]
Assume I save a copy of a picture for which I don’t own the copyright. What, precisely, did I “steal”? (Answer: Nothing. Even the Supreme Court ruled that copyright infringement isn’t theft.)
And, like I’ve pointed out before, they also tend to lack the kind of protections that would prevent people from being arrested for dumb tweets.
That has nothing to do with 230 or intermediary liability.
The people who authored 47 U.S.C. § 230 intended to allow “family friendly” sites and services to moderate speech without facing legal trouble. Get rid of 230 and you get rid of every incentive those sites and services have to stay “family friendly”. Spam, racist/sexist/homophobic nonsense, all that kind of trash — all of it legal, all of it unable to be moderated without legal woes because of whatever doesn’t get moderated.
Society has always been a jungle. We take it day by day.
This is different from every other period of time…how, exactly?
…fucking what
Bless your heart, honey, but 230 has nothing to do with so-called cancel culture. And 230 doesn’t prevent people who call for “worse” (i.e., the responsible parties) from being arrested, sued, etc.
Again: People in the UK have been arrested over tweets that weren’t even violent or defamatory in nature. You shouldn’t want to hold that example up as an ideal unless you want the United States to become a full-bore police state.
The courts have never really punished people, let alone corporations, for abusing the DMCA. (At least, not in a way that proves the anti-abuse provisions aren’t impotent.) When the courts refuse to stifle the abuse, people/corporations see that as a green light to keep abusing the system, and the cycle continues without fail.
[ link to this | view in chronology ]
Re:
What Stephen says.
[ link to this | view in chronology ]
Re:
The Supreme Court disagrees with you.
Guess who wins?
[ link to this | view in chronology ]
Re: Re:
"The Supreme Court disagrees with you."
Bing Bing!
You win the award for being the proud poster who told Bobmail/Blue/Jhon these exact words for the 1000th time. The prize is one internet "like".
[ link to this | view in chronology ]
Re:
Dude, have you actually been on Usenet? There's more hatred and spam and vile bullshit there than anywhere else, because unlike social media platforms like Facebook and Twitter, there is no moderation whatsoever. Nothing gets taken down, no matter how hostile.
So now DMCA 230 is now a 2nd Amendment issue, too? Wow. Who knew?
[ link to this | view in chronology ]
Re: Re:
Dude, have you actually been on Usenet? There's more hatred and spam and vile bullshit there than anywhere else, because unlike social media platforms like Facebook and Twitter, there is no moderation whatsoever. Nothing gets taken down, no matter how hostile.
Why, I do believe you've stumbled upon why certain individuals would like 230 gutted and sites instead using the USENET model...
[ link to this | view in chronology ]
Re: Re:
"So now DMCA 230 is now a 2nd Amendment issue, too? Wow. Who knew?"
Bing Bing!
You win the award for being the proud poster who for the 500th time informed Bobmail/Blue/Jhon that people being free to determine the rules on their own property is NOT a threat to liberty and freedom.
You win a "like" this time as well. Make it last.
[ link to this | view in chronology ]
Re: Re: Re:
He's been on a roll lately, bless him. Won a couple of Insightful votes from me, too.
[ link to this | view in chronology ]
Re: Re: Re: Re:
"He's been on a roll lately, bless him. Won a couple of Insightful votes from me, too."
The dictionary-definition conservative I have few issues with. Things can be discussed with those and a civil agreement to disagree can usually be found.
Too bad they've all been ousted as undesirables in the current GOP which I maintain would have considered even Eisenhower an ungodly bleeding-heart liberal hippie.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
The dictionary-definition conservative I have few issues with. Things can be discussed with those and a civil agreement to disagree can usually be found.
It's just a matter of figuring out what the key issue really is, at which point you either frame your argument to appeal to that bias or just accept it's not going to fly. For example, if you point out that it's cheaper to house homeless people than to either neglect or persecute them, they can be won over on the fiscal responsibility bias. Hammer the point home with examples of such policies in practice. This works like a dream on me. I changed my attitude to recreational drug use from prohibitionist to "What Portugal does" when the person I was discussing it with pointed me to evidence. It's the same deal with sex work. I'm now in favour of "Legalise, tax, and regulate."
..the current GOP which I maintain would have considered even Eisenhower an ungodly bleeding-heart liberal hippie.
They totally do. I've seen it in their forums.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Last year Santa Ana was forced to clear out a 1000+ vagrant encampment in the riverbed. The city had been happily ignoring their own residents' non-stop complaints about hygiene and arson, and a steadily increasing crime rate in the city, but then the federal government came a-knocking and told them that the encampment violates federal clean water environmental laws and if they didn't do something about it, the city would be fined quite steeply every day that it persists.
So the city grudgingly cleared out the encampment, and offered shelter to the displaced vagrants in the form of vouchers for free hotel rooms.
Guess how many vagrants accepted the free housing? … One in ten. So your claim that "it's cheaper to house homeless people" doesn't mean much when 90% of them have no interest in being sheltered. They want to live on the streets. At that point, I have no more patience with them. Sorry, but you've been offered shelter-- at your fellow citizens' expense, no less-- and you've refused. So now all bets are off. We can't force you to take the shelter, but you don't get lie around on the sidewalk or pitch a tent in a public playground or sleep on a public beach. Just get the fuck out and move on, and if that means you have to go out into the Mojave Desert to live, so be it.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
"Guess how many vagrants accepted the free housing? … One in ten. So your claim that "it's cheaper to house homeless people" doesn't mean much when 90% of them have no interest in being sheltered. They want to live on the streets."
Sorry, but at that point the first item on my agenda would be to look further. No one wants to live in deprivation and filth.
However, I can imagine a good reason why no one sensible would want to touch a government project with a ten-foot pole as well. How many of the vagrants would be able to produce a citizen id, genuine or not? Would they have a reason to believe that what would await them was internment in a cage courtesy of the ICE under Trump Rules?
We had a similar case in Stockholm where it's been difficult to get homeless sluiced into social projects. for good and valid reason, sadly, as in many cases the affected had ample reason not to trust the authorities.
"Sorry, but you've been offered shelter..."
Yeah, but would that shelter have been in housing or in a cage?
I think Wendy's arguments are still sound. Fiscal conservatism has no conflict with humanitarianism in many cases, as both the founding fathers and eisenhower were keen to point out.
The conflict comes when you link active maliciousness and a political urge to retain a scapegoat into the equation.
...so that brings us back to my statements about where the current GOP can't be called conservative any longer because it's anything but conservative to keep coming up with new ideas to undermine the basic constitutional protections for people as a whole.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
Gentlemen, I looked up the case in order to see if BTR or the rest of us is correct. This is what I found:
https://laist.com/2018/09/11/the_court_case_that_forced_oc_to_stop_ignoring_its_homeless.php
https://www.ocregister.com/2019/10/02/santa-ana-intensifies-efforts-to-address-homelessness/
https:/ /www.latimes.com/socal/daily-pilot/entertainment/story/2019-07-24/settlement-ends-18-month-battle-su rrounding-orange-county-homeless-lawsuit
The needs of these people can be pretty complex, especially if they're old, disabled, or have pets. Not every hotel can accommodate these people, and they're not obliged to take in people they consider to be bums. Meanwhile, the shelters are apparently not "pest-free." So it's either a hotel that's not obliged to take you in or probably won't, or a cockroach motel of a shelter.
Proper housing that meets their needs is what's required -- and what works. It tends to pay for itself when the newly housed job-ready people find work and pay rent. The people with more complex needs will always be a drain on finances but it's cheaper to house them according to their needs than jail them or leave them until they need emergency care -- on the state's dime.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
Neither is the Santa Ana riverbed, for jeezus sweet sake. Any hotel that's operating has to have a license to do so, which means they meet the minimum county regulations for hygiene and safety, so whatever hotel it is, it's objectively better, safer, and cleaner than sleeping in a rat-infested vagrant encampment in the bed of a river that can flash flood and drown you without warning.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
https://twitter.com/edantes112/status/1207836271667580928?s=21
It was the Best Western motel and they weren't locked in. The people that accepted were free to come and go as they pleased.
This whole 'cage' thing you've concocted is nothing but a strawman.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
"It was the Best Western motel and they weren't locked in. The people that accepted were free to come and go as they pleased."
Anyone in the US today who does not have a realistic option of proving citizenship (a problem, given that very few vagrants carry any form of citizen id) would be subject to an ICE raid.
And looking at only a few weeks ago, we've already seen the ICE going to absurd lengths to gather and collect enough "illegals" to fill their quotas. A few hotels full of vagrants would be the low-hanging fruit.
So I reiterate, since you saw fit not to read the sentence you replied to;
"How many of the vagrants would be able to produce a citizen id, genuine or not? Would they have a reason to believe that what would await them was internment in a cage courtesy of the ICE under Trump Rules?"
Try to imagine yourself in the situation of being offered "shelter" by the same authorities you already know to be eager to rack up collars for anything from drug use, to loitering, to "being brown in the wrong place".
There are multiple damn good reasons for the targets of the campaign to view the authorities with a great deal of suspicion.
"This whole 'cage' thing you've concocted is nothing but a strawman."
Look at the recent actions of the ICE and tell me you would, as a vagrant with unreliable ways to call on citizenship, put a single ounce of trust in the authorities offering you a convenient place to gather up in one set location.
I'm with you in one regard - if a credible offer of support is offered and refused there really isn't a good way to help.
The keyword being "credible". And that's a problem in the US today.
[ link to this | view in chronology ]
Re:
Who decides what speech is evil, People like Robyn Openshaw?
[ link to this | view in chronology ]
Re: Re:
The real funny part is that they seem to think(or have deluded themselves into believing) they wouldn't find themselves lumped into that latter category, given how often they have their comments flagged and hidden.
If whether a comment gets to stay depends on community standards then they are screwed, just like now.
[ link to this | view in chronology ]
Re: Re:
It will shut trump up?
[ link to this | view in chronology ]
Re: Re: Re:
"It will shut trump up?"
...it probably would. Hrm, if Jhon/Bobmail/Blue has his way and section 230 goes away pot odds are no US president will ever be able to reach out on any platform again, ever.
You know you're looking at shit from a very titled angle when you start thinking, albeit briefly, that Baghdad bob may have found an actual point
[ link to this | view in chronology ]
It's like obscenity. It has no definition, but I know it when I see it.
[ link to this | view in chronology ]
Re:
I guarantee that what you find obscene is not going to match what I find obscene. So who is the proper judge of obscenity?
[ link to this | view in chronology ]
Re:
We get it, Techdirt's T-shirts getting taken off made you jizz in your pants.
Wipe that shit up, Herrick.
[ link to this | view in chronology ]
Re:
"Eliminating Section 230 wouldn't chill speech, just evil speech."
And who decides what is evil speech? Assclowns like you? Really?
[ link to this | view in chronology ]
Re:
How the fuck can you be this stupid.
[ link to this | view in chronology ]
Re: Re:
Intellectual property law, that's how. It's like taking a hand blender to your brain, I swear.
[ link to this | view in chronology ]
Solution
The solution is obvious: print in Canada! At least until the next time we sign a trade treaty with y'all and inevitably "harmonize" on this.
[ link to this | view in chronology ]
Re: Solution
You haven't been paying attention over the last five to ten years, have you? Canada has been worse for copyright and other IP laws now for years. They elected some idiots and flipped from someone to admire into someone to hold up as an example of "at least we're not them".
[ link to this | view in chronology ]
"Recklessness can constitute willful infringement"
Are there any cases with rulings in this direction?
"an infringer’s knowing reliance on obviously insufficient oversight mechanisms."
How is it obvious that an oversight mechanism is insufficient? Simply because someone is suing everyone?
I imagine that such a determination would require extensive testing using one or more custom applications that would need to be created and thoroughly tested before use.
[ link to this | view in chronology ]
Re: recklessness?
There are cases of "secondary infringement", "contributory infrigement" or "inducing infringement" where a platform is so full of copyvios (and its owners know it's full of copyvios) that it's still lawsuit bait even though the platform has legitimate uses.
The saga of the original Napster, or of Grokster, being dragged all the way to the US Supreme Court and ultimately bankrupted would be the obvious precedents.
It's a huge leap, though, from this to presuming that anything that can be used to infringe is wilfully intended to exactly do that.
[ link to this | view in chronology ]
Re: Re: recklessness?
wtf is a "copyvio"?
And the cases you're talking about, nevermind the extraterritorial bullshit that saw the US going after Napster, were about willful, knowledgable infringement, even tot he extent that the site rewarded users for uploading more and more content knowing full well that it was copyrighted content, fully with intent to distribute. That's a far cry from what platforms like Facebook and Twitter are doing.
[ link to this | view in chronology ]
Re:
Because the oversight mechanism, being automated, is designed to allow some infringement to occur.
But that's not the right question. The right question is whether the internet, which allows things at a scale that would seem impossible if using analog technologies, means that we apply different standards.
Yes, human review is impossible at internet scale. Does that mean that we must allow business models where human review is impossible, or is it just legally impossible to do certain things at internet scale (at least until we change the law)?
[ link to this | view in chronology ]
“Recklessness can constitute willful infringement
Whatever
[ link to this | view in chronology ]
Law is, or law ought?
This is one of those Techdirt arguments that lets the policy argument bleed into the legal argument.
My legal position is always that the Constitution allows for statutory law to take new technologies that 9 out of 10 economists and philosophers agree are a societal good and if allowed bring a new age of utopia to man and curb stomp the hell out of them unless and until the law is changed by the legislature.
It's a perfectly reasonable legal argument that, if you are a producer of physical goods, those goods can't be infringing. The legal argument doesn't have to take into account how innovative or convenient or otherwise beneficial to society automating the production of goods at the cost of some small amount of infringement could be. Unless that balance is explicitly in the statute, the statute can demand zero infringement even if that kills off the business model.
So I wish there was more of a textualist argument as to why the exclusion of physical goods from the DMCA is legally wrong, as opposed to "this leads to ridiculous policy results." Lots of Supreme Court justices are very happy to say, "your elected representatives passed that stupid law, now you have to live with it; don't come to us to save you."
[ link to this | view in chronology ]
This is nonsensical, as it's basically saying that even though the process (user generated content) is exactly the same, the fact that it goes from a computer screen onto an actual physical good like a t-shirt, that suddenly changes the liability protection for intermediaries.
Just like someone who repeats online defamation at the company water cooler should still have Section 230 protection?
[ link to this | view in chronology ]
Re:
LOL! That is ridiculous! Seriously, how would you even track the person down to sue them? Can I watch?
[ link to this | view in chronology ]
Unless the company water cooler is an interactive web service, that person doesn’t have 230 protections. They shouldn’t be liable for defamation, either, since (as you pointed out with the word “repeats”) they didn’t come up with the defamatory statements in the first place.
[ link to this | view in chronology ]
Re:
Congrats Chris. That’s your dumbest argument yet bro. I knew you had it in ya!
[ link to this | view in chronology ]
I'd tried enquiring with support@teespring... as "I'm trying to find a shirt with the slogan 'Copying Is Not Theft' which I saw advertised on techdirt.com as being available on your site. I don't seem to be able to find the item... where is it?"
The reply I received was:
Thank you for reaching out to our Customer Care Support, I am happy to help!
I have checked this for you and unfortunately, we're no longer offering this design due to a violation of our policies.
Just go to Teespring.com and use keywords in our search feature to find a design!
We truly apologize, again, for the inconvenience. Please let us know if you need anything else.
I responded "May I ask which policies this is violating and why?" and got no answer at all. Nothing but deafening silence...
[ link to this | view in chronology ]