Mark Cuban's Wrong: Porn Filtering On YouTube Doesn't Mean It Loses Safe Harbors

from the porn-ain't-copyright-infringement dept

Mark Cuban has a weird obsession with trying to convince people that YouTube is illegal, despite plenty of evidence to the contrary. His latest discussion on the topic is a real stretch. In response to the bad ruling that gives YouTube log files to Viacom, Cuban is saying that Viacom can now wipe out Google's DMCA safe harbors by showing that the company filters porn.

This is simply incorrect. The DMCA safe harbors do not claim that if you filter any material you must filter it all. Filtering out porn is a different beast than filtering out infringing content. You can tell that porn is porn simply by looking at it. But you cannot tell if content is infringing just by looking at it. It could be put up there on purpose by those who own the copyright. It could be fair use. It's not as simple as just saying that because YouTube removes porn it loses its safe harbor provisions. Also, while not specifically concerning the DMCA, other lawsuits involving the similar safe harbors in the CDA have found that intervening with content on a site does not mean that the safe harbors go away. Having knowledge that some content is porn is quite different than having knowledge of what content is infringing on someone's copyright.

Filed Under: cda, dmca, filtering, mark cuban, safe harbor
Companies: google, viacom, youtube

Once Again, Craigslist Isn't Liable For Discriminatory Posts

from the can't-sue-the-messenger dept

A little over two years ago, a civil rights group sued Craigslist, blaming the company for the fact that some of its users were posting discriminatory housing/roommate offers -- which could violate the Fair Housing Act of 1968. However, as plenty of people noted at the time, section 230 of the CDA protects Craigslist as a service provider, not a publisher, meaning that Craigslist isn't the party to sue here. The group could certainly go after the original posters for violating the law, but Craigslist is just the service provider and has no say in the content. That seemed obvious right from the beginning, but the civil rights group pushed forward and lost its case. The judge explained all of this to the lawyers... who filed an appeal anyway. The appeals court has now ruled as well, and (no surprise here) affirmed the original ruling, saying that Craigslist is a service provider, not a publisher, and therefore is not liable for discriminatory posts. As Eric Goldman points out, the ruling (again) makes this quite clear:

"Using the remarkably candid postings on craigslist, the Lawyers' Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination....It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful discrimination."

What will be interesting, however, is to see what happens now in a very similar lawsuit involving Roommates.com that is currently being reviewed in a different Circuit. Hopefully the court there comes to a similar conclusion and we stop getting these types of incorrectly targeted lawsuits.

Filed Under: discrimination, housing, safe harbor, section 230, service provider
Companies: craigslist

As Expected, IFPI 'Advertising' Helps Boost BitTorrent Search Site

from the the-definition-of-insanity dept

For a group that claims it's focused on "educating" people, the recording industry seems amazingly thickheaded in learning lessons itself. Just last week the IFPI succeeded in having an Israeli court demand that Israeli ISPs block bittorrent search site HttpShare. As we noted in that post, this would likely act as tremendous advertising for HttpShare -- and, indeed, that's exactly what has happened. The site claims that traffic has jumped, even requiring the site owners to upgrade the hardware hosting the site -- all thanks to a little "IFPI Advertising."

What's most stunning, however, is that the IFPI didn't realize this would happen. After all, it's happened again and again and again. In fact, just a month ago, a similar action in Denmark over the Pirate Bay greatly increased traffic to the site. Hell, the Pirate Bay first came to international attention (beyond a much smaller niche group of users) after the IFPI pressured gov't officials to take the site down. Of course, rather than recognize this, the IFPI and the RIAA (and the MPAA at times as well) always claim that each of these "shut downs" is a "significant blow" against piracy. Apparently, they never consider what happens next. Makes you think that the execs and lawyers at the recording industry probably aren't very good chess players.

Filed Under: ifpi, ireland, isps, liability, safe harbor
Companies: httpshare, ifpi

IFPI's New Strategy: Sue ISPs For Not Stopping File Sharing

from the making-life-even-worse-for-themselves dept

Earlier this year, the IFPI was successful in convincing a court to force a Danish ISP to block access to the Pirate Bay. Rather than recognizing that this only helped drive more traffic to the Pirate Bay, the folks at the IFPI seem to have gotten it into their heads that the best course of action is to start suing ISPs for not stopping file sharing. Its first target is the large Irish ISP Eircom. Eircom points out all the obvious things: it has no idea what its users are doing on the network, it's just providing the network -- and no one had made it aware of any specific infringing activity. Rather than deal with those very reasonable questions, the record labels responded with the ridiculous "but you know it's happening!" response which we've heard all too often these days. Of course, knowing that unauthorized file sharing is happening on your network and being either liable or able to stop it are two very different things. Basically, the record labels seem to be admitting that they are unable to stop file sharing, so it must be someone else's job. Even worse, they seem to be saying that it's a legal responsibility of someone else to try to prop up their own failed business model. Talk about grasping at straws. I'm not sure if Ireland has laws like the US's safe harbor provisions protecting service providers from liability for the actions of users, but hopefully the Irish courts quickly realize how ridiculous it is to pin liability on an ISP and throw this case out. What's also partly disturbing is the fact that the "but you know it's happening!" comment comes from an EMI exec, just after we thought EMI was moving away from ridiculous IFPI lawsuits. Apparently not.

Filed Under: ifpi, ireland, isps, liability, safe harbor
Companies: eircom, ifpi

Citizen Journalism Site Sued Over Content Posted By User

from the no-surprise-there dept

We've seen way too many cases where people blame service providers for the actions of their users, despite clear safe harbors found in section 230 of the CDA. The courts have been pretty consistent in throwing these lawsuits out, but it appears the message still hasn't reached some lawyers. Up in Brattleboro, New Hampshire, someone is suing a local citizen journalism site for comments posted by a user that were potentially defamatory. The woman is suing the person who made the comments -- which makes sense -- but also the site that hosted them. This, despite the fact that the comments on the site are unmoderated. This would seem like a clear situation where the site, iBrattleboro, is protected by section 230, but the lawyer handling the case doesn't seem to think so: "I think their defense will be that they don't read prior to publishing, but I'm not sure that will be enough to avoid some degree of liability." That seems like an odd statement as the law is pretty clear: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Plus, there's a wide assortment of precedent cases that all seem to back up very similar situations as being protected.

Filed Under: brattleboro, safe harbor, section 230

Tiffany CEO Admits That It's Suing eBay Because It's Too Hard To Find Real Counterfeiters

from the lawsuits-don't-work-that-way dept

Three and a half years ago, famed jeweler Tiffany sued eBay because people were selling counterfeit Tiffany goods on the auction site. As we noted at the time, it doesn't make any sense at all to sue eBay, since it's not eBay who's doing anything wrong. Tiffany's CEO has now basically admitted that, but doesn't seem to mind. At a hearing in the lawsuit, CEO Michael Kowalski admitted that the firm was suing eBay because it was hard to find the actual sellers. That may make sense in the mind of a Tiffany exec, but the way laws work is that you don't get to sue the person or company who's easy to find just because those actually responsible are hard to find. When a robber holds up a Tiffany store, does Kowalski sue the maker of the getaway car, because the robber can't be found? The company does admit that it sues the individuals when they can be found, but the CEO refers to them as "phantasms" and claimed it made more sense to just focus on eBay, saying that the real fault is "the distribution network, not the seller." Next thing you know, Kowalski will be suing the internet itself. After all, it's "the network, not the seller."

Filed Under: counterfeit goods, luxury goods, safe harbor
Companies: ebay, tiffany

Selling Illicit Phone Records Not Protected By Safe Harbors

from the a-little-more-involved dept

We've talked about the importance of "safe harbors" protecting service providers from the actions of users. Too often, companies go after service providers because they're easier to target and because they have more money -- but they're not the ones actually breaking the law, and making them liable for the actions of their users would be an incredible burden on any company that allowed users to do... well... anything. However, a recent ruling has shown one limitation to the section 230 safe harbors found in the CDA: if you're selling illicit phone records that were obtained via pretexting, you are still liable, even if you didn't do the pretexting yourself. In this case, a company called Accusearch offered to sell phone records, but contracted out the actual pretexting work to obtain the phone records. So, when the FTC came calling to fine Accusearch, it claimed that it was protected under section 230. As Eric Goldman explains in the above link, some of the court's reasoning was a little suspect, even if it came to the right conclusion at the end. One key point as to why this is different? This wasn't about "users" generating content that was potentially a problem. This was a company specifically buying and then reselling content -- so it was clearly a part of the process. If, say, a similar service opened up where it was simply bulletin boards where people posted illicitly gained phone records (or the ability to get them), then the company might have retained safe harbor protections.

Filed Under: cda, safe harbor, section 230
Companies: accusearch

Universal Music Too Impatient To Wait For Earlier Lawsuit Results; Sues Veoh

from the you-sued-me?--ok,-I'll-sue-you dept

A month ago, we detailed the long history of Universal Music mistakenly suing just about every online video hosting firm (other than Google's YouTube, who gave Universal Music a sweetener to sue everyone else and skip YouTube). The conclusion to that story was that, following a typical "pay up or else" threat from Universal Music, video hosting site Veoh took the initiative and preemptively sued to have a judge claim that what it was doing was perfectly legal. Rather than wait to hear what the judge has to say on the matter, Universal Music simply went right ahead and sued Veoh anyway. Once again, this is a misguided lawsuit against a company that is doing nothing wrong for a service that isn't taking any money away from Universal Music. People sometimes complain that we spend too much time pointing out the mistakes of the recording industry. We'd love to stop it -- but the record label execs seem to have absolutely no recognition for how badly they continue to muck up their own businesses.

Filed Under: copyright, safe harbor
Companies: universal music, veoh

It's Time To Harmonize Service Provider Safe Harbor Rules

from the because-confusing-rules-are-bad dept

Eric Goldman points us to a relatively recent paper by Mark Lemley that takes a look at internet safe harbors for service providers. Lemley agrees with many of us around here that safe harbors make perfect sense, since there's no reason to put the liability on a third party who is simply providing a service, rather than the person actually breaking the law. However, his complaint is that there are different safe harbor rules written into different laws and they have different requirements. For example, copyright safe harbors are a part of the DMCA and require a specific process to receive protection. Safe harbors for libel, however, are in the CDA and work differently than the ones in the DMCA. Since the purpose of both safe harbors is the same, it makes sense, as Lemley suggests, that the various safe harbor rules be put under a single umbrella and harmonized. It's such a reasonable idea it'll probably never happen.

Filed Under: cda, dmca, safe harbor

Veoh Sick Of Waiting For Lawsuit; Pre-emptively Sues Universal Music

from the stop-with-the-threats dept

Speaking of Edgar Bronfman and Universal Music being confused about the market, it appears that the company is being sued by online video site Veoh. This one requires going back a little and looking at the history to understand what's happening. In September last year, Universal Music Group CEO Doug Morris made the ridiculous claim that YouTube and MySpace owed Universal Music millions because they were hosting videos that contained Universal's music. Note that this wasn't about downloadable (or even streamed) song files. It's about videos that happen to have Universal music in the background. There's no credible way for Universal to claim that anyone was using music in such a video as a substitute for actually purchasing music. If anything, these videos help promote the music. This was, clearly, a blatant money grab (and one that would actually tend to cut off the promotional value of these videos).

Soon after this, Google bought YouTube, and as a part of the deal had them pay off Universal Music and the other labels. A rumored part of the deal was that the record labels would not sue YouTube, but would sue YouTube competitors. Universal Music obliged, suing smaller sites Bolt and Grouper. There was an attempted settlement, but problems with the settlement quashed a potential acquisition for Bolt recently. A month later, Universal also sued MySpace. Basically, it's decided to shake down every online video service, hoping for some cash settlements even though it would probably lose in court.

Last month, apparently, Universal Music alerted Veoh that it was "considering" suing the company for "massive copyright infringement," though it failed to provide any details. It's a typical shakedown situation. Basically a threat with nothing to back it up other than a "you wouldn't want to end up like those other websites, now would you?" implied threat. Veoh apparently decided to fight back. Rather than wait for Universal Music to file a lawsuit, it's gone to a judge to ask for a declaratory judgment that Veoh's service is perfectly legal under the DMCA safe harbor provisions. It's great to see at least one company stand up to Universal on this one -- especially after the disappointment of Google paying off the record labels on this issue. Hopefully the judge recognizes the issues at stake.

Filed Under: copyright, dmca, infringement, music, safe harbor, videos, youtube
Companies: google, myspace, universal music, veoh, youtube