No one wants to see Google/YouTube sued into oblivion? I disagree. The publishing, music, and motion picture industries have all made it clear through their public statements and legal actions that they would be delighted to sue Google into oblivion, or to use that possibility as leverage. Either way, lesser UGC hosts and search engines would fall right in line and comply with every demand, no matter how onerous, to filter or pre-screen content, manipulate search results, harshly punish users, and hand over revenue.
The perjury clause in 17 USC 512 only covers the assertion that the sender of the infringement notice (HFA) is an authorized agent of the copyright owner (of the work they think was infringed by the clip on YouTube). Criminal charges are otherwise not an option.
Civil relief is likewise limited: 17 USC 512(f) only allows the uploader to sue for actual damages. But what economic harm did he suffer when the video was pulled from YouTube? Zero I think.
True, statutory damages are not meant as punishment, and they are meant to be an option for when actual damages are hard to ascertain. But at least when it comes to copyright infringement, the range was increased in 1999 specifically in response to online piracy, with the intent of being a deterrent. [Refs: here and here.] So, legally, it doesn't really matter that the numbers are unlikely to even in the ballpark of actual damages.
Re: Not difficult: copyright is the right to control copies.
Had you confined your post to the first two paragraphs, it would've been fine. But you had to go an throw in a condescending "Mike" and not one but two ad hominem fallacies. If you control your urge to belittle, you may actually be taken seriously one day.
Re: DVD ripping, Mike said "it's already acknowledged as legal to do the same thing with CDs".
Is it, though? The RIAA website actually only ever said that ripping "won't usually raise concerns". That's not the same thing as it being legal. There's no explicit exception in the law, and no court has actually weighed in on it.
In court cases against file-sharers, industry reps didn't hesitate to characterize ripped files on defendants' hard drives as "illegal" and "stealing". See RIAA Believes MP3s Are A Crime: Why This Matters (Wired)
The closest a court came to ruling on it was in RIAA v. Diamond Multimedia, but that case was only about whether the manufacturer of the Rio (iPod predecessor) was required to pay royalties to the music industry under the AHRA-mandated system that imposes a levy on DAT recorders and blank "audio" CD-Rs. The answer was no, because the Rio was not technically a "recording device" as defined by the AHRA. The court, citing the Congressional Record, did comment that space-shifting (from a hard drive to a Rio-like device, at least) appears to have been intended by the AHRA. However, the final language of the AHRA only ended up permitting copying with or to certain digital "recording" devices or media, which the court ruled did not include the Rio, and which almost certainly does not include hard drives in general. And since the comment wasn't pivotal in the court's decision, it's unlikely to be interpreted in future cases as an actual ruling on that issue.
When circumventing CD copy protection was proposed for the 2006 round of DMCA exemptions, the RIAA argued that "creating a back-up copy of a music CD is not a non-infringing use, for reasons similar to those the Register canvassed in detail in her 2003 determination that back-up copying of DVDs cannot be treated as noninfringing. [...] there is no general exception to the reproduction right to allow back-up copying."
Further, RIAA boss Cary Sherman, when asked on NPR about Don Verrilli's oft-quoted from the MGM v. Grokster case ("The record companies, my clients, have said, for some time now..."), insisted that Verrilli "misspoke" and that the RIAA has never actually taken a stand on the legality of ripping. When the interviewer asked him point-blank whether ripping was legal, Sherman was evasive, only stating that they had not yet taken anyone to court over that issue alone. Listen to his weasly blather here: Rip This and Sue That (NPR)
Am I the only one here in the habit of closing my browser window the instant I discover that a link I clicked on takes me to a page that automatically starts playing a video? (...like 2 of the 3 stories linked to here)
So will Hollywood take the high road and implement a union/university-like, in-house dispute resolution system that interns can use, or will they take the unethical route and simply make all their interns (and every other underling) sign agreements to arbitrate any disputes individually?
Cynical me, I've just assumed that the media companies are already doing market research on file-sharers. It doesn't mean they aren't also trying to stop the file-sharing. "Thanks for the market insights, guys. Oh, by the way, you each need to pay us $3500 per work infringed, or we'll see you in court."
I just add the hours I spend reading TOSes to the 244 hours per year I spend reading privacy policies. I'm getting paid for this, right?
Seriously, though, if the TOS had to be clicked on to complete the transaction, courts have found them enforceable, at least according to what I've seen on Eric Goldman's blog.
Fair use is not "yes I infringed but...". average_joe described it more accurately as prima facie infringement, i.e. "yes it looks like infringement, but your rights do not extend to this particular four-prong-satisfying use, and thus were not (and cannot be) infringed in this situation." But you're correct in that it's a defense, not a magic spell that wards off accusations of infringement.
A DMCA notice isn't "just" a notice. The provider will lose safe harbor status if they don't take down the specified content. The provider cannot exercise editorial control, deciding that some situations are fair use and others aren't. If a DMCA notice is received, and is properly formatted and all that, then the provider has no choice but to take the content down, or they open themselves up to liability for everything they "publish".
And finally, content owners would love for the public to believe otherwise, but fair use is not "yes I am infringing but..." Rather, the word infringing does not apply when it's fair use. No rights are being infringed; the content owner's rights simply do not cover certain types of uses. One can claim fair use and still be accused of infringement, and then a court will test the use against the four prongs and make a determination one way or the other. Until then, it's not infringement.
Re: I keep telling ya, EVEN IF counter-productive, the biz LIKES it!
How should someone go about telling you that you're wrong, then, if they don't actually say "you're wrong"? Is it OK if they just explain the ways in which you're wrong, or is the mere fact that they're pointing out your errors "boilerplate"?
If you haven't stopped reading already, you should know that magnet links are basically just torrent file IDs instead of locations. You still end up getting and using torrent files! You just get them from peers instead from a specific server (single point of failure). It doesn't require anything different on your part, other than client support, so it's really no less convenient than a direct link. Every major client supports magnet URIs; surely some of them are to your liking, and even if you use one of the obscure ones, it's quite likely all you have to do is ask the developers to add support for magnet URIs. If ads are a problem in your preferred client, they're usually easily blocked with a basic firewall and publicly-available blocklists.
So...TPB is just as easy to use as it ever was. There's no story here.
I should add, I'm not fond of bureaucracy; I'm more of a "show me the money" kind of person. So I think these meetings are important to have, but databases like Discogs and MusicBrainz got to where they are by just getting something going early on, very limited in scope, then expanding and talking through the thorny issues over time. If they had started out by holding meeting after meeting to spec out something on the scale of what they have now, there wouldn't be much to show for it today.
Likewise, on the closed, commercial side of things, I'm under the impression it took Apple just going ahead and setting up a digital marketplace system (which surely has a robust database behind it), then getting the record companies to sign on and license their content (and then to pressure them into doing it DRM-free), because clearly those stakeholders weren't going to do it themselves. Gracenote is another example, building on a foundation of crowdsourced data, monetizing it and essentially providing centralized metadata services to vendors and content owners alike; now they get all their data from official sources, but it took a company like that coming along and pushing the data owners to do it. It wasn't the result of years of meetings and white papers; they got something going that was immediately useful, albeit flawed, and built it up and improved it over time. IMHO this is the way forward.
A central database of rights information is not something that was only just proposed in January 2012. Use your web search skills:
International Music Registry
WIPOCOS
Global Repertoire Database
The only thing I've heard about how these projects are going is that the stakeholders in the WIPO's IMR meetings at one point got into a straight-up shouting match. Perhaps you could contact these groups and give us an update.
"Which engineer worked on which songs" is the kind of thing that only obsessive music collectors keep track of. The music industry isn't going to start keeping track of that anytime soon; what's in it for them, unless they can put it behind a paywall? (...is their thinking, at least.) I mean, they might have financial records showing who they paid and when, but even that's going to be spotty going back more than a few years. The major labels barely even know what their own historical assets are. As I mentioned before, in 2006 I had someone from one of the Big 4 ask me for discographies for some of their own labels (and we're talking early '90s catalog, here... *boggle*). I could only point him to Discogs and MusicBrainz, the paragons of crowdsourced, centralized, transparent, openly licensed databases of commercial & promotional sound recording releases. That's the only place where that info exists. It's not sitting in a file cabinet at Universal.
Re: Correction request from the creator of OpenDyslexic
The info in this article came from the cited article on DailyTech, which says "At the time he was charging a nominal fee," so the correction should be made there, as well.
The graph contains an error: in the section "Upload files to websites where people can download them", the bar with the value 19 is shorter than the bar with the value 12. What's the correct data there?
Also, I don't think this really matters, but the study was for music files, so I'm wondering why the MPAA (rather than RIAA, IFPI, and PROs) got singled out for this article. I could see the MPAA going "well, maybe that's how people feel about music, but our studies show that the public is much more respectful of copyright when it comes to movies and TV."
I hope we do hear from their legal counsel, or whoever made the decision to send the infringement accusation. My suspicion is that they know about trademark law's "use it or lose it" basis that demands vigorous enforcement, and they mistakenly proceed under the assumption that copyright is in the same boat. It seems likely that the decision to send this letter over such a benign situation is a manifestation of the all-too-common "better safe than sorry" approach to doing business.
On the post: Video About Fair Use, Remix & Culture Taken Down Over Copyright Claim (Of Course)
Re:
On the post: Harry Fox Agency Claims Copyright Over Public Domain Work By Johann Strauss
Re: So...
Civil relief is likewise limited: 17 USC 512(f) only allows the uploader to sue for actual damages. But what economic harm did he suffer when the video was pulled from YouTube? Zero I think.
On the post: LeakID And The DMCA Takedown Notice Farce
On the post: BitTorrent Uploader Ordered To Pay $1.5 Million After Not Showing Up In Court
Re: Re: Re: Re: Attention idiots:
On the post: Supreme Court Justices Worry About 'Parade Of Horribles' If They Agree You Don't Own What You Bought
Re: Not difficult: copyright is the right to control copies.
On the post: DMCA Exemptions Announced; Exemption For DVD Ripping Rejected; Phone Unlocking Going Away
No, CD ripping has not been acknowledged as legal
Is it, though? The RIAA website actually only ever said that ripping "won't usually raise concerns". That's not the same thing as it being legal. There's no explicit exception in the law, and no court has actually weighed in on it.
In court cases against file-sharers, industry reps didn't hesitate to characterize ripped files on defendants' hard drives as "illegal" and "stealing". See RIAA Believes MP3s Are A Crime: Why This Matters (Wired)
The closest a court came to ruling on it was in RIAA v. Diamond Multimedia, but that case was only about whether the manufacturer of the Rio (iPod predecessor) was required to pay royalties to the music industry under the AHRA-mandated system that imposes a levy on DAT recorders and blank "audio" CD-Rs. The answer was no, because the Rio was not technically a "recording device" as defined by the AHRA. The court, citing the Congressional Record, did comment that space-shifting (from a hard drive to a Rio-like device, at least) appears to have been intended by the AHRA. However, the final language of the AHRA only ended up permitting copying with or to certain digital "recording" devices or media, which the court ruled did not include the Rio, and which almost certainly does not include hard drives in general. And since the comment wasn't pivotal in the court's decision, it's unlikely to be interpreted in future cases as an actual ruling on that issue.
When circumventing CD copy protection was proposed for the 2006 round of DMCA exemptions, the RIAA argued that "creating a back-up copy of a music CD is not a non-infringing use, for reasons similar to those the Register canvassed in detail in her 2003 determination that back-up copying of DVDs cannot be treated as noninfringing. [...] there is no general exception to the reproduction right to allow back-up copying."
Further, RIAA boss Cary Sherman, when asked on NPR about Don Verrilli's oft-quoted from the MGM v. Grokster case ("The record companies, my clients, have said, for some time now..."), insisted that Verrilli "misspoke" and that the RIAA has never actually taken a stand on the legality of ripping. When the interviewer asked him point-blank whether ripping was legal, Sherman was evasive, only stating that they had not yet taken anyone to court over that issue alone. Listen to his weasly blather here: Rip This and Sue That (NPR)
On the post: DailyDirt: Six Million Dollar
ManPeopleOn the post: It Takes Jon Stewart To Finally Ask Obama About Civil Liberties... But Lets Him Off The Hook On Bogus Answer
Re: Re:
On the post: For All The Talk From Hollywood About Making Sure People Get Paid, Why Doesn't It Pay Interns?
On the post: Making The Most Of File Sharing: Free Market Research & A Captive Target Audience
On the post: Study: Viewing Cat Videos At Work Can Make You More Productive
Re:
On the post: Studio To Amazon Instant Video Customer: Thanks For The $$$. Enjoy Your Blank Screen.
"Clickwrap" agreements are enforceable
Seriously, though, if the TOS had to be clicked on to complete the transaction, courts have found them enforceable, at least according to what I've seen on Eric Goldman's blog.
On the post: Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown
Re: Re: Re: Re: Re:
On the post: Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown
Re:
And finally, content owners would love for the public to believe otherwise, but fair use is not "yes I am infringing but..." Rather, the word infringing does not apply when it's fair use. No rights are being infringed; the content owner's rights simply do not cover certain types of uses. One can claim fair use and still be accused of infringement, and then a court will test the use against the four prongs and make a determination one way or the other. Until then, it's not infringement.
Also, IANAL.
On the post: Yet Again, File Sharing Correlated To Biggest Buyers
Re: I keep telling ya, EVEN IF counter-productive, the biz LIKES it!
If you haven't stopped reading already, you should know that magnet links are basically just torrent file IDs instead of locations. You still end up getting and using torrent files! You just get them from peers instead from a specific server (single point of failure). It doesn't require anything different on your part, other than client support, so it's really no less convenient than a direct link. Every major client supports magnet URIs; surely some of them are to your liking, and even if you use one of the obscure ones, it's quite likely all you have to do is ask the developers to add support for magnet URIs. If ads are a problem in your preferred client, they're usually easily blocked with a basic firewall and publicly-available blocklists.
So...TPB is just as easy to use as it ever was. There's no story here.
On the post: Bringing Artists & Entrepreneurs Together To Help Each Other
Re: Rights database projects are already underway
I should add, I'm not fond of bureaucracy; I'm more of a "show me the money" kind of person. So I think these meetings are important to have, but databases like Discogs and MusicBrainz got to where they are by just getting something going early on, very limited in scope, then expanding and talking through the thorny issues over time. If they had started out by holding meeting after meeting to spec out something on the scale of what they have now, there wouldn't be much to show for it today.
Likewise, on the closed, commercial side of things, I'm under the impression it took Apple just going ahead and setting up a digital marketplace system (which surely has a robust database behind it), then getting the record companies to sign on and license their content (and then to pressure them into doing it DRM-free), because clearly those stakeholders weren't going to do it themselves. Gracenote is another example, building on a foundation of crowdsourced data, monetizing it and essentially providing centralized metadata services to vendors and content owners alike; now they get all their data from official sources, but it took a company like that coming along and pushing the data owners to do it. It wasn't the result of years of meetings and white papers; they got something going that was immediately useful, albeit flawed, and built it up and improved it over time. IMHO this is the way forward.
On the post: Bringing Artists & Entrepreneurs Together To Help Each Other
Rights database projects are already underway
International Music Registry
WIPOCOS
Global Repertoire Database
The only thing I've heard about how these projects are going is that the stakeholders in the WIPO's IMR meetings at one point got into a straight-up shouting match. Perhaps you could contact these groups and give us an update.
"Which engineer worked on which songs" is the kind of thing that only obsessive music collectors keep track of. The music industry isn't going to start keeping track of that anytime soon; what's in it for them, unless they can put it behind a paywall? (...is their thinking, at least.) I mean, they might have financial records showing who they paid and when, but even that's going to be spotty going back more than a few years. The major labels barely even know what their own historical assets are. As I mentioned before, in 2006 I had someone from one of the Big 4 ask me for discographies for some of their own labels (and we're talking early '90s catalog, here... *boggle*). I could only point him to Discogs and MusicBrainz, the paragons of crowdsourced, centralized, transparent, openly licensed databases of commercial & promotional sound recording releases. That's the only place where that info exists. It's not sitting in a file cabinet at Universal.
On the post: Font Designed To Help Dyslexic Individuals Gets Legal Threat, Becomes More Open In Response
Re: Correction request from the creator of OpenDyslexic
On the post: Why The MPAA Can't 'Win The Hearts And Minds' Of The Public: File Sharing Is Mainstream
Also, I don't think this really matters, but the study was for music files, so I'm wondering why the MPAA (rather than RIAA, IFPI, and PROs) got singled out for this article. I could see the MPAA going "well, maybe that's how people feel about music, but our studies show that the public is much more respectful of copyright when it comes to movies and TV."
On the post: Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences
Re:
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