Brief In Viacom/YouTube Trial Tries To Rewrite The DMCA

from the draining-the-safe-harbors dept

As the Viacom/YouTube trial moves on, it should come as no surprise that a bunch of entertainment industry folks filed briefs in support of Viacom. They're going to protect their own, even if it means breaking a fundamental key that makes the internet useful (something that will come back to haunt them). Most of the filings echo the twisted claims of Viacom, such as the ones we recently picked apart, based on the totally unsubstantiated claim that Google somehow has a better idea of what's infringing than the copyright holder. A finding that agrees with that would be a massive rewrite of fundamental liability principles.

However, there's one filing that people keep sending in over and over again. I was going to avoid commenting on it, but it really is so ridiculous and so factually challenged, that it needs some sort of a response. It comes from the Washington Legal Foundation, a group that claims it's a champion of free market principles, limited government and individual rights... but then has regularly supported government granted monopolies in the form of copyright that go against the free market and individual rights. Sometimes, you get the feeling that any DC-based "think tank" organization actually stands for exactly the opposite of what they put on their marketing material.

WLF's filing focuses on the DMCA safe harbor questions in the case: Like any good attempt to mislead, it starts out accurately. The DMCA was, very much, intended to fight copyright infringement online. But then it begins to subtly rewrite history in a dangerous way. Let's start with this line:

The DMCA was crafted to accommodate the concerns of copyright holders as well as the interests of Internet service providers. Specifically, Congress sought both to protect the intellectual property rights and to limit the liability of innocent service providers. As the DMCA makes clear, Congress believed these twin goals could best be accomplished by encouraging cooperation.

Technically... true, but extremely misleading. It's true that it was designed to "accommodate" the concerns and interests of both parties, but that sentence suggests that both sides came together to work out a happy deal for both. That's not the case. The DMCA was written very much for the copyright holders (hell, it was basically written by the industry). It was because of that, the ISPs then freaked out, when they realized that legislation written entirely by the industry would almost certainly put a ridiculous liability burden on ISPs. So they started making noise and complaining. Because of that, the DMCA's safe harbors were put in. That was the only way to get the ISPs to go along with the deal. This wasn't a case of the copyright holders and ISPs working together to come up with a solution. It was the copyright holders pushing for as much as they could get, and then giving the ISPs a safe harbor so that the bill would pass.

... the DMCA was neither adopted nor intended to encourage service providers to exploit the existence of the safe harbors by designing businesses based on an ability to avoid liability.

Frankly, that statement is obnoxious. Perhaps people in Hollywood (and self-contradictory DC think tanks) think that folks in Silicon Valley are purposely looking for legal loopholes to build businesses based on avoiding liability, but that's flat out ridiculous. Companies are building services because they find them useful and compelling. They're not "exploiting" safe harbors. They're recognizing the core reason why safe harbors are there in the first place: because liability should be place on the party who actually infringes. That should be common sense, but because it's clearly not, it needs to be spelled out in the law.

Relying on highly-specific decisions, YouTube and its amici seek to place essentially the entire burden on the copyright holder. This approach cannot be reconciled with Congress's clearly stated intent to "preserve strong incentives for.... cooperat[ion]," ... nor with the structure of the statute Congress enacted. In essence, YouTube asks this court to convert a calibrated series of shared obligations into a single "takedown" notice requirement placed solely on copyright owners.

Wow. Wow. This is just downright misleading. No one has ever said that the entire burden is placed on the copyright holder. It's blatantly wrong to suggest that. The point that Google and others have made is simply that making a determination of whether or not something is infringing is not something that can be made without knowing certain facts that the copyright holder knows (i.e., whether or not the holder has authorized the works). Thus, the most effectively know whether or not a work is infringing -- the requirement in the DMCA for content to be taken down -- is through a takedown notice. Once again, like Viacom and its supporters, the WLF seems to think that Google has a magic ability to understand Viacom's intentions and authorizations, when even Viacom's own partners have admitted that Viacom changed its authorization rules every few days and it involved a book the length of Crime and Punishment, which was not shared with Google.

Not only is such a limiting interpretation belied by the DMCA, it is undermined by the fact (as illustrated here) that a takedown notice often provides little or no protection to copyright owners.

Again, I'm left shaking my head in disbelief. Did they really claim that? The ability to pull content down without any judicial review whatsoever (which seems to go against basic First Amendment principles) provides "little or no protection"? Apparently, the folks at WLF haven't been paying attention to how widely the DMCA is used.

Under its interpretation of the DMCA, YouTube would be free to set up a business that knowingly infringes (and encourages and induces infringement of) copyrighted works on a massive scale by copying, publicly performing, displaying and disseminating those works. Under the construction of the DMCA it urges on this Court, YouTube could actively encourage massive infringement and still claim DMCA protection simply by after-the-fact (limited response to takedown notices.

Here, WLF is just making stuff up. Each of those points is wrong. If it has direct knowledge of infringement, then it violates the DMCA. If it induces and encourages infringement, it violates the Grokster standard for inducement. WLF knows this. YouTube knows this. No one denies this. I don't know why WLF is claiming otherwise, other than that it can't make its argument in a factual manner. The problem is that WLF is pretending that having general knowledge that some stuff infringes means that it can induce. No one is arguing that.

Simply put, Congress never intended such a patently one-sided result.

Well, first of all, that patently one-sided result is a figment of the imagination of the author. YouTube is not even close to arguing that it should be free to induce infringement. In fact, under the Grokster decision, everyone knows that inducement is infringement. Why WLF would pretend otherwise is beyond me.

But even worse, it's somewhat guffaw-inducing for anyone to suggest that any interpretation of the DMCA is one-sided in favor of service providers. The entire law was written in the interests of copyright holders, and it's massively one-sided towards them. The one balancing factor is the safe harbors. What WLF is trying to do here is to focus solely on those safe harbors -- the part designed to "balance" the DMCA, and pretend that's all there is to the DMCA, and that this interpretation designed merely to make sure that liability is properly placed on those doing the infringing is somehow one-sided. This is highly disingenuous.

There are plenty of interesting legal arguments on both sides of this case, but this particular filing is an attempt to rewrite history and the law in a manner that makes little sense and would wipe out a key principle in applying liability to those who are actually responsible. Instead, it tries to pretend that service providers have the magic ability to just know what's infringing and what's not. The inevitable results of increasing service provider liability in such a manner would be an incredible chilling effect on all sorts of user-generated platforms and service providers -- a result Congress most certainly did not intend.

Filed Under: copyright, dmca, liability, safe harbors
Companies: google, viacom, washington legal foundation, youtube

Scuba Diving Organizer Sues Web Forum After Debate Over Scuba Death Liability

from the hello-section-230,-hello-streisand dept

When will companies learn? Blaine points us to a story that's now a few months old, but still worth talking about. Apparently, two years ago, there was a scuba diving accident where someone died and some others were injured. On a particular scuba diving forum, ScubaBoard.com, there was a discussion about the incident. Apparently there had already been some other somewhat negative postings about the travel agency, Maldives Scuba Diving, that organized (and potentially ran) the trip, and from there the conversation spiraled. The person who owns the travel agency decided to sue just about everyone, including ScubaBoard.com. For ScubaBoard, it seems like this should be a quick Section 230 dismissal based on safe harbors, but the site's owner is apparently still scrounging up the money to deal with this. Also, the complaint apparently tries to get around this by claiming that commenters on the message boards are "all agents or employees of Intermedia [ScubaBoard's owner], or made the postings at issue at Intermedia's direction." That's an argument that is likely to get laughed out of court.

There may be some cases against individual posters, but the comments sound like your ordinary comment board opinion and hyperbole. At least in the quoted comments, it's difficult to see anything that's actually defamatory. Upsetting? Perhaps, but not defamatory. It sounds like something bad happened, and whether or not the operator of this company was responsible, there were plenty of better ways to respond. However, busting out the lawsuit, suing the message board itself, as well as 100 posters, just seems to reinforce the problems and bring even more attention to the accident and the concerns people have with this woman's company.

Filed Under: employees, forums, free speech, liability, scuba diving

Why Do People Keep Insisting That Google Has A Better Idea What's Infringing Than Viacom?

from the bizarre-reasoning dept

When a piece on copyright law is written by a "former commissioner and vice chairman of the U.S. International Trade Commission" and the "dean emeritus of Boston University School of Law and chairman of the Center for the Rule of Law," I would expect that the reasoning would make a lot of sense, but I find myself quite troubled by what Ronald Cass claims in a recent Forbes article about the Google/Viacom battle concerning YouTube. Basically, Cass seems to repeat all of Viacom's talking points and not consider the actual facts of the situation. It's very strange. Perhaps he is only taking a superficial look at the facts. Let's help him out.

Disclosures of internal e-mails portray YouTube as a business designed, operated, and marketed to make money from users unlawfully posting copyrighted material (pirated clips from Saturday Night Live and The Colbert Report, for instance). YouTube founders knew their site was carrying "truckloads" of pirated material. Steve Chen chastised fellow cofounder Jawed Karim for putting up "stolen videos" himself, adding, "We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site . . . when one of the cofounders is blatantly stealing content from other sites and trying to get everyone to see it."

This is the money quote that Viacom and its defenders keep repeating. But it was taken totally out of context. The discussion, when put back into context, shows clearly that Chen and Karim were not arguing about copyrighted material like "pirated clips from Saturday Night Live and The Colbert Report," as Cass claims, but about viral videos from other online video sites that were like YouTube.

Google spotted the piracy problem early on. Its executives contrasted YouTube's encouragement of copyright violations with Google Video's screening to find and remove the most likely violations. But piracy proved the more successful business model, and Google ultimately swallowed both its scruples and YouTube, buying the site for $1.65 billion.

Indeed. And no one denies that there is a ton of content on YouTube that violates copyrights and is being used in an unauthorized manner. What no one has been able to explain -- certainly not Viacom nor Cass -- are how anyone other than the copyright holder could possibly know which content is authorized and which is not. Even Viacom's own partner, BayTSP, compared Viacom's rule book -- which changed every few days -- of what was authorized and what should be taken down to Crime and Punishment. And yet Cass and Viacom think that Google should "just know" what's infringing?

Viacom's claims are rooted in mainstream property rules and liability rules. Property rules give people rights in things they've created or bought, including the right to keep anyone else from using it without their consent. You can't take a bite of someone else's burger or swipe one of their fries as you walk through a restaurant just because you think it looks really tasty; you don't have a right to grab what isn't yours. Liability rules make it illegal to act in ways that put other people at risk when there are reasonable ways to protect them, like construction companies warning folks nearby when they're going to be blasting.

This is really incredibly wrong, and surprising from a supposed expert in "intellectual property" law. Copyright law, specifically, developed independently from property and liability rules, because it has an entirely different purpose. Property laws are about figuring out who possesses ownership of a scarce item. Liability laws are about who is responsible for putting others at risk. Copyright is about promoting the progress of science and the useful arts. Saying that it comes from the same place is just blatantly wrong. Copyright is not about liability or property -- it's a monopoly privilege granted to certain people for the sake of increasing the incentive to create.

Ideas and creative work, the subjects of intellectual property (IP) law, aren't exactly like other things. Ideas can be used without being used up, but innovative and creative work often are tremendously expensive to create and hard to protect, which is why IP law resembles ordinary property and liability law.

He's right on the first part, but wrong on the latter. IP laws resemble property and liability laws only due to the work of lobbyists who have worked quite hard to change the very nature of copyright law far, far away from its intended purpose.

Supreme Court decisions in the 1984 Sony case and the 2005 Grokster case frame the rule on IP liability. Sony wasn't liable for copyright infringements by people using its Betamax video recorders because most Betamax use didn't infringe copyright and Sony had no relatively easy way to police infringement. Grokster, however, was liable for infringements by users of its peer-to-peer file sharing software because it promoted infringement as the use most likely to be made of its product.

This is such an extreme misreading of both Supreme Court rulings that it again seems to come straight from the Viacom talking points. The basis of the Sony Betamax decision was the "substantial non-infringing uses" of the technology -- something that is also true of YouTube. I'll note that Cass totally ignores that after Viacom took down 100,000 videos which it claimed were infringing (some, it later admits, it was mistaken about), Viacom expected traffic to YouTube to drop, since it believed that it was its content that kept YouTube going. But traffic grew. Oops. It is true that part of the Grokster decision was because it had some ability to police infringement, but the key to the Grokster ruling was the direct inducement by Grokster in suggesting users infringe.

The question of ability to police was not central to either ruling -- but is central to this case. And, again, Cass totally ignores that whole Crime and Punishment list of rules that Viacom had, and the fact that Viacom worked very hard to put up content on the site that looked like it was infringing when it was really authorized. Why would he ignore that and misrepresent those two other cases?

Information disclosed so far puts YouTube-Google in jeopardy on both property and liability claims. YouTube facilitated massive copyright violations and knew it, made a lot of money from traffic built on copyright violations and had relatively easy, cost-efficient ways of monitoring them. In fact, YouTube did monitor but stopped when it became clear just how much of its traffic and revenue were tied to piracy. Google stepped into YouTube's shoes when it bought the company and turned a blind eye to what was going on.

Again, Cass completely overlooks the facts of the case and misleadingly goes back to "property and liability claims" rather than what copyright law actually says. Why would he do that? The problem, again, is that despite his claims, YouTube-Google did not know what content was infringing and what was authorized. Cass says they could monitor it, but gives no explanation whatsoever how it could possibly know that the videos uploaded by MMysticalGirl8 from the local Kinkos were actually authorized by Viacom.

That's where the argument for a different Internet law comes in. YouTube-Google and sympathizers like EFF say that the Digital Millennium Copyright Act (the 1998 law Congress put in place to address a set of technology-related IP issues) insulates YouTube-Google.

No, Cass is wrong again. The argument for the DMCA coming it comes at the beginning of this case. Not well into it. Why? Because this is not a property or liability case. It's a copyright case.

But DMCA isn't a radical departure from the Sony-Grokster framework, just a specific application to players in the Internet world, spelling out copyright infringing acts and "safe harbors." Notably, Section 512 prevents liability for a service provider storing infringing material if the provider doesn't know about it, have information that makes the infringing activity apparent or profit from it, and takes infringing material down promptly when aware of it. The e-mails and other material show that YouTube-Google misses the safe harbor on almost all counts (more like crashing into the dock than sailing into the harbor).

Once again, Cass misses the most basic facts of this case in a troubling way. Google did, in fact, take down material promptly "when aware of it." The key question -- which you'll note Cass conveniently skips over is what constitutes "when aware of it." That is the key point that will determine this case, and you would think someone of Cass's background would know to highlight it. Instead, he hides it.

Google argues that it was not aware of specific infringement, in part because it has no way of knowing whether or not the content is infringing or authorized -- especially when Viacom is going through all that trouble to make authorized content look infringing, while also authorizing all sorts of content with a huge and ever-changing rulebook. Viacom, on the other hand, claims that "when aware of it" just means aware in general that there is infringing content on the site.

But such an interpretation of the DMCA would render those safe harbors effectively meaningless. It would effectively say that if there's any infringing content on your user-generated site, you no longer qualify -- even if you can't figure out which content is specifically infringing and which is not. That makes no sense.

EFF wants to expand the harbor for providers by requiring direct notice of each individual posting of copyrighted work (followed by a decision not to act), reasoning that "take down" incentives under DMCA are enough. This rewrites the law, which recognizes that providers often are in much better position than copyright owners to find violations.

This is wrong on so many levels. The law does not and never has recognized that providers are in a better position to find violations. In fact, the law says the exact opposite. The whole point of the safe harbors is because the service providers can't really know for sure what's infringing until they receive notice -- exactly as the EFF notes. They aren't trying to "expand" the safe harbors. They're just saying what the purpose of those safe harbors has always been.

There's too much material for an individual right holder to screen, too many "private" sections of sites that copyright holders can't see (though providers can) and more efficient alternatives for reducing the amount of pirated material on sites that reward piracy.

And he closes with the "but it's just too difficult" for copyright holders argument. But he doesn't note that it's even more difficult for the service providers who aren't the copyright holders and have no idea if the content has been put up there in an authorized manner or not.

Filed Under: copyright, dmca, liability, property law, ronald cass, safe harbors
Companies: google, viacom, youtube

German Court Now Rules That RapidShare Is Not Liable For Infringement By Users

from the reason-amongst-the-insanity? dept

RapidShare, the digital file locker service, has come under fire a lot lately by the entertainment industry as the latest in a long line of online services that are used for unauthorized file sharing. There have been a bunch of lawsuits in Germany over the site, and a series of rulings against the company, including orders that it proactively monitor content being hosted on the site, that it magically know which songs are infringing and which are authorized, and that it block the upload of certain files or have its staff face jailtime.

However, it seems that in at least one of these cases, the appeals court has come to its sense and realized that RapidShare is not liable for the content that its users store via the service. The court noted that RapidShare was acting well within the law, and that the measures demanded by various copyright holders (and ordered by some previous court rulings) made little sense:

Filtering based on keywords is not effective since that would result in many false positives, the Court noted. Likewise, manually reviewing uploaded content is not deemed feasible because RapidShare does not have the manpower to do this.

Another suggestion, banning file formats such as RARs, was also tossed out since this file type says little about whether a file is copyrighted or not. RAR is simply a format used to compress data, regardless of the copyrighted status of the files, the court explained.

It's not clear whether or not this will actually have much impact on some of those other lawsuits, but it's still nice to see at least one sensible ruling.

Filed Under: copyright, germany, liability, storage locker
Companies: rapidshare

Connecticut Police Use Craigslist To Fight Prostitution; As Their Attorney General Grandstands To Take Away That Tool

from the what-a-tool dept

We've been covering Connecticut Attorney General Richard Blumenthal's totally misguided crusade against Craigslist on the topic of prostitution. For years, he's complained and threatened Craigslist because prostitutes use the service. Of course, he's never taken legal action because he must realize that there is no legal action he can take. The law is pretty clear: the liability is on the users of the service, not the makers of the service. Even so, Craigslist has repeatedly changed the way its service works to appease Blumenthal, and while he initially seems happy with those changes, months later, he's always back to complaining (just in time for elections too...).

Of course, the point we've made all along in response to Blumenthal is that for smart law enforcement officials, Craigslist is an excellent tool for monitoring and cracking down on prostitution. In fact, it appears that some police in Connecticut are doing exactly that. Eric sends in the story of police in Naugatuck, Connecticut using Craigslist to crack down on prostitution in their city.

The police responded to a few ads that they believe were from prostitutes seeking money for sex, and arrested two women. Separately -- and a bit more questionably -- the police also put up an ad themselves, waiting for men to reply, and eventually arrested eighteen men who replied (including a city official). It's difficult to see how that latter part of the sting isn't entrapment, but they insist it's not. Either way, it does seem like a bit of a contradiction when the state's Attorney General is seeking to block Craigslist from dealing in such ads entirely while police in the state are using it as a tool against prostitution at the same time. Maybe they should talk to each other. But, of course, when Blumenthal's real purpose is not about stopping prostitution, but instead making sure he's re-elected, suddenly the seemingly contradictory actions make a lot more sense. Oh, and if Blumenthal is really looking to grandstand about Craigslist, why not complain about the fact that the guy who bought the Nissan Pathfinder used in the failed Times Square car bomb attack this weekend supposedly bought it via Craigslist. Surely, if Craigslist can be blamed for prostitution, now it can also be blamed for terrorism...

Filed Under: connecticut, liability, prostitution, richard blumenthal, section 230
Companies: craigslist

Victim Of Domestic Abuse Sues GPS Company For Helping Her Assailant

from the it's-the-tool dept

Michael Scott points us to the news of a new lawsuit that hopefully doesn't get very far, but which does highlight the frequency with which third parties are sued these days, not because they have any actual liability, but because they have money. In this case, a woman is suing a GPS vehicle tracking service, Foxtrax Vehicle Tracking, because her domestic partner used the service to figure out where she was and to attack her. It sounds as though the guy put the tracking device on the woman's car in order to stalk her. It's difficult to think that anyone could find the company liable here for the actions of the guy. I'm sure it's upsetting that the guy was able to track her, and she has every right to press all sorts of charges against the guy. But the GPS tracking company was merely the technology provider.

However, this is yet another example of what I've called "Steve Dallas lawsuits," after a Bloom County cartoon strip, I remembered from decades ago, where the character Steve Dallas (a lawyer, who gets beaten up by Sean Penn when he tried to take his photograph -- some things never change), explains why after going through all the options on who to sue, he chooses to sue the camera manufacturer, the made-up Nikolta, because it's "a major corporation with gobs of liquid cash...."

Filed Under: domestic abuse, gps, liability, third party liability
Companies: foxtrax vehicle tracking

Legal Analysis Of Italian Criminal Conviction Of Google Execs Says Judge Made A Big Legal Error

from the whoops dept

We were among those amazed back in February, when an Italian court ruled that three Google execs were criminally liable for a video posted on Google Video, and were sentenced to six months suspended sentences. The video in question involved some kids taunting a mentally challenged boy and throwing a tissue box at him. Within hours of Google being alerted to the video, it was taken down. Part of the debate focused on whether or not Google should have known about problems with the video or whether or not Google had actually been informed earlier -- but the only evidence that seemed to have been presented was that the comments on the video complained about the content. But it wasn't clear that anyone at Google had read the comments. Still, when the decision came out, it was just the decision -- not the full ruling by the judge, leading to some detailed legal guesses for the judge's reasoning.

However, it looks like the ruling has finally come out, and one Italian legal expert, after reading through it in detail, suggests the ruling was based on a pretty big legal interpretation error by the judge. The details are a bit complex, but basically, it seems the judge may have combined two separate parts of a law that were disconnected (and, the key part of the law wasn't even brought up in the case itself) to suggest that Google's big mistake was in not prominently telling users that they should not upload videos without the permission of everyone in the video. That information was in the Google Video's terms of service, but the judge felt that wasn't enough.

The problem is that the law doesn't actually say that Google had to make that information clear to users -- and, even if Google didn't satisfy that part of the law, not only was it not mentioned during the trial at all, it's also not connected to the part of the law Google was actually charged under:

The trouble with the ruling, said [Elvira] Berlingieri, is that Section 13 of the law was not mentioned in the case against the Google trio at all. One charge laid against them by prosecutors was to do with defamation, and that failed. The other was to do with privacy but that was based on a supposed data-processing violation of Section 167 of the law.

Section 167 of the Act says that anyone who breaches particular Sections of the Act with a view to gain or with intent to cause harm shall be punished by imprisonment of between six and 24 months. The Sections to which it refers, though, do not include Section 13.

"If you put together Section 13 and Section 167, that is how you get a sentence of six months," she said. "The problem is that Section 167 does not talk about Section 13. In the charge written by the prosecutors, Article 13 is never mentioned."

This definitely seems like good news for Google in its planned appeal.

Of course, even outside of the legal nuances of this, just from a common sense standpoint, this ruling is incredibly troubling. It's difficult to see how anyone (outside of those with logic deficiencies) could defend the ruling. The video itself was actually helpful in punishing the kids responsible. If Google had actually stopped the video from being uploaded, they would have gotten away with the bullying. On top of that, making the sanctions criminal against individuals seems way over the top, especially for individuals who had absolutely no knowledge of the video in question whatsoever. The whole thing seems ridiculous on any level.

Filed Under: criminal charges, eu, italy, liability, online video, privacy, youtube
Companies: google

Now Available At Your Local Flea Market: Safe Harbors

from the do-your-own-policing dept

Online marketplaces like eBay have a bit of protection from liability if their platforms are used to sell counterfeit or copyrighted goods. However, in the offline world, flea markets have historically not been granted the same type of protection, as seen in Fonovisa v. Cherry Auctions (1996), where flea markets were found to be liable for selling infringing works.

But now, the same protections afforded to online marketplaces could now be coming to their offline counterparts. Texas judge Lynn Hughes has dismissed the case Sony Discos Inc. v. EJC Family Partnership, where Sony Music sued a flea market operator, Elwin J. Cole, for copyrighted goods being sold at the market. Sony alleged that EJC was guilty of contributory infringement by allowing its sellers to sell copyrighted goods in the market. The judge disagreed, ruling that it was not EJC's responsibility to police the market for Sony (full ruling here - pdf):

Sony does not argue and cannot show that Cole aided or enhanced infringing sales specifically, in a manner distinct from Cole's facilitation of all sales at the flea market.

...Cole is not akin to the driver of a get-away car; he is closer to the service station manager who sells the bank-robber gasoline.

So, perhaps driven by the safe harbors enjoyed by their online counterparts, offline flea markets are no longer to be held responsible for infringing uses of their marketplaces. If infringement happens, then it's reasonable for the owners to go after those specifically responsible -- it's inefficient and unfair to expect a marketplace to do the police work, especially when there are tons of non-infringing sales happening all of the time.

Filed Under: flea markets, liability, safe harbors, secondary liability

How Third Party Liability Can Stifle An Industry

from the things-we-don't-want dept

The entertainment industry has been pushing really hard for greater secondary liability for third parties, lately -- hoping to roll back some of the vastly important safe harbors found in both the DMCA and Section 230 of the CDA. Both of those safe harbors (though, they work in different ways) are designed to make sure that liability is properly applied towards the party that actually broke the law. Secondary liability is a dangerous concept that applies the liability to a third party because it's difficult to find the actual perpetrator. But, in what world does it make sense for you to blame an innocent bystander just because it's hard to find the actual person responsible?

The consequences of secondary liability (both intended and unintended) are incredibly dangerous for both free speech and for the ability to create new and useful services online. We've already seen how the Chinese have taken secondary liability to a new level by using it as the core mechanism for censorship. But still the entertainment industry pushes forward.

They should be careful what they wish for. An article in the Times Online highlights the situation in Ireland, where there aren't safe harbors against secondary liability for defamation -- and it's leading internet companies to blatantly censor or to avoid doing business in Ireland out of fear for the liability. Now, some in the entertainment industry seem to think this is just fine -- because they think that the internet should be a broadcast medium for the big "professional" producers of content, and all these internet companies and user-generated content things should really all fade away.

But for people who recognize that freedom of communication online is important, and who recognize that third parties who create services should not be blamed for their misuse by users, this should be quite troubling. Trying to increase secondary liability on service providers through things like ACTA is an attempt to strip away basic legal common sense in the proper application of liability, in an effort to crowd out new online services, in favor of old school broadcast entertainment firms.

Filed Under: cda, dmca, entertainment industry, liability, safe harbors