It seems to me that, on your interpretation, a site like youtube would really not be possible. The problem is that whether a piece of content is infringing depends on whether the person who uploaded it was the copyright holder - or had authorisation from said copyright holder - and there is no way to establish that from the material that is uploaded.
And yet under my interpretation YouTube is acting within the law now. They just weren't back then. YouTube does not have to check for whether or not every single upload is legit. They do not have a duty to police their site. What they do have is a duty to act when they have actual or apparent knowledge of infringement. Once they have that knowledge, they must act.
Now in recent years Google has instituted the contentID system - but that only solves the problem in respect of major corporate rightsholders. After all the law doesn't put such rightsholders into a special position so legally contentID has not really changed the situation..
ContentID has changed the situation considerably. By implementing such systems YouTube is taking action and showing their good faith. You must keep in mind that YouTube's actions don't have to be perfect. They just have to try.
Despite what you may think of my ability to comprehend English, I know what you're getting at. The simple fact is that the record is filled with examples of YouTube having apparent knowledge of infringement that they chose to do nothing about. This knowledge was more than a generalized knowledge. This knowledge was specific enough that they could have taken action if they wanted to. Obviously if the knowledge was so vague that they couldn't possibly done anything about it then that would be a different story. Obviously that's not the standard. That would be stupid.
Have you read through the statement of facts in the case? Have you read the motions on both sides? I want you to figure this out for yourself. Pretend you're YouTube and you know what they know. Pretend too you have a duty to act in good faith in the face of your knowledge. What would you do? They did nothing, and that was not the legitimate answer.
No I don't - if specific knowledge is obtained indirectly then you can act on it. The point is that the knowledge in this case is not specific. It is the nature of the knowledge itself that matters - how it was obtained is irrelevant.
The knowledge was sufficient to trigger the duty to take action. YouTube chose to turn a blind eye.
We're going in circles at this point. Go ahead and get the last word.
If those who wrote the law believed that a service like youtube should disable access to all material that it had some vague suspicion about then there would have been no need for a very specific takedown procedure.
The statute does not say "vague suspicion." Those are your words. There is the takedown procedure, and there is the duty to act in the face of actual or apparent knowledge. The two are not mutually exclusive.
No - the fact is that the law has always required specific knowledge to create liability - the DMCA merely restates this general principle.
The law requires either actual knowledge or apparent knowledge. I don't understand why you think apparent knowledge is somehow not actionable.
So I ask you if youtube were aware that (say) 5% of the videos on their site are infringing - but don't know which ones - how are they supposed to proceed (in your opinion) to avoid liability?
You're confusing general knowledge with apparent knowledge. General knowledge, without more, does not make them lose their safe harbor. Apparent knowledge, which is general knowledge PLUS MORE, is a different story.
Have you read the case I linked for you? Have you read the cases mentioned in that case? Let's chat more after you have. I have work to do.
Your distinction relates to the manner of obtaining knowledge rather than to the type of knowledge obtained - which must still be sufficient enough to allow action.
And you have this strange notion that it's somehow impossible to act on knowledge that was obtained indirectly.
Clearly the knowledge involved (the subject of this section)must be sufficient to allow the service provider to remove or disable access to the material.
Nobody denies that.
Perhaps you could actually provide a specific argument rather than trying to assert some kind of vague authority based on the subject of your studies...
In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities. This "knowledge" standard is defined as "actual knowledge" or "willful ignorance." According to the widely cited House and Senate Report on the law, "if the service provider becomes aware of a 'red flag' from which infringing activity is apparent, it will lose the limitation of liability if it takes no action." H.R. Rep. 105-551(II), at 53; see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). The Congressional Report notes that the service provider is only liable if it "turned a blind eye to 'red flags' of obvious infringement." H.R. Rep. 105-551(II), at 57. Other courts have applied this test as requiring "willful ignorance of readily apparent infringement." UMG Recordings Inc. v. Veoh Networks Inc., __ F. Supp. 2d __, 2009 WL 3422839, at *7 (C.D. Cal. 2009) (citing Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)).
If you want to learn more, just read the cases cited in that quote. That's how I learn. I read one case, and then I read the cases cited in that case, and so on.
I read the word of that piece of law and I do not see any reason to change my belief.
I can only conclude that your understanding of the English language is defective.
Oh, really? How do you interpret this: "in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent"? Have you read any caselaw on how courts interpret it? Have you read any of the congressional reports from when they drafted it? Perhaps you should brush up on those things before you claim my understanding of English is defective. And if you're going to dismiss me with such a childish response, I'll not waste another second on you.
How are they supposed to act without item specific knowledge?
The idea is quite simple. One type of knowledge is actual knowledge, based on direct evidence. Another type is apparent knowledge, which is based on indirect evidence. It's the idea of constructive knowledge. It's what you knew or should have known. This means that you cannot be willfully blind. Willful blindness is the same as knowledge in copyright law.
How are they supposed to act? Simple. They are supposed to act in good faith. What they can't do is do nothing when faced with such knowledge. Doing nothing is acting in bad faith, and the DMCA does not allow bad faith actors to moor in its safe harbors.
Have you read the statute? It's plain meaning is about as clear as can be:
"A service provider shall not be liable . . . if the service provider - (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material . . . ." 17 U.S.C. 512(c)(1)
There are clearly two levels of knowledge that trigger the duty to act "to remove, or disable access to, the material": (1) "actual knowledge," and (2) "in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent."
The statute could not be any more clear on this point. Courts that have applied it have said the same.
Also - if those who framed the statue believed what you say then they would not have invented the DMCA notification process.
I'll give you a more relevant example. I'm sure most iPhone users haven't read the LOC ruling that jailbreaking is no longer a DMCA violation. So, if they jailbreak their iPhones, they believe they're breaking the law. Can they be arrested? No, they can't - because whether they know it or not, what they are doing is not illegal.
The mens rea for criminal copyright infringement is "willfully," no? I think you're make it way too complicated by bringing up strict liability (speeding) and the idea of whether impossibility is a defense (iPhone jailbreaking).
I'll go ahead and ask the same question to Karl, Modplan, and anyone else reading this. What do you suppose is the prosecutor's theory of criminal copyright infringement in the seizure of torrent-finder.com?
By way of background... These seizures were done pursuant to 18 U.S.C. 2323. You can see that for yourself by reading the notice posted on http://torrent-finder.com/ The statute allows for the seizure of "[a]ny property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement under 17 U.S.C. 506.
In other words, by seizing the domain name in this way, the prosecutor had to produce probable cause that the domain name was being used to commit or facilitate criminal copyright infringement. Since we have no way of knowing for sure, I'm curious what people think the prosecutor's theory is.
Personally, I think perhaps the theory is that torrent-finder.com is facilitating others to commit criminal copyright infringement, and as such the domain name is subject to seizure. I also suspect that the operators of the site might be chargeable as accomplices in the infringement.
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How can you be an accomplice to a crime that hasn't happened?
Do you get this at all?
I'm happy to chat with you, but there's absolutely no reason to be so rude. Obviously there is an underlying crime in the prosecutor's mind (and in the mind of the judge who agreed and signed the warrant), hence the seizure of property (the domain name) used in the furtherance of that crime. The necessary implication of a seizure pursuant to 18 U.S.C. 2323 (which is what we have here) is that there is an underlying crime. What we're trying to figure out is what crime the prosecutor has in mind. Do you have any theories? Do you think you can join the conversation in a constructive way?
If what they are doing is not in fact criminal, then it matters not one iota what their intent is. If the speed limit is actually 65MPH, then you're not going to get a ticket for driving 65MPH, even if you think you're in a school zone.
Intent does matter. That's what mens rea is in criminal law. Speeding is a strict liability offense, which is different.
I guess it depends on taste. Netflix streaming has more stuff than I could ever watch--and it's tons of stuff I want to watch. The DVDs are great for new releases or some TV shows, but in general, I'm just as happy watching the old stuff over streaming.
I just got two Roku boxes a couple of weeks ago and I absolutely love them. I'm ordering another one tomorrow (free shipping this weekend from Roku). I'd say look at what's available and decide whether you like the selection. Between Roku, Hulu, and Amazon on Demand, my TV needs are more than met.
It was claimed Grokster could control their service and were told to try and stop/block all infringing files. Torrent-finder has no control over the search results of others, it merely queries other search engines and presents their results in what amounts to an embedded browser.
I just don't buy that torrent-finder is so innocent. They must have more than just a generalized knowledge that their site is primarily used for infringement. In fact, I'd be genuinely surprised if that wasn't the entire purpose of the site. Reading the message boards on there only verifies my suspicion. Do you think they set up shop to help people infringe, or do you think they set up shop to help people only find the legit torrents? Honestly, what do you think? If you think their intent is legit, then how do you explain the fact that they make absolutely no effort to block infringement? The issue isn't whether you can think of some possibility to justify their actions, no matter how remote the possibility. The issue is simply what are they actually doing, and why they're doing it. Their liability hinges on whether they are in good faith or bad. If you look at that site and see a good faith bunch of Boy Scouts, then I've got a bridge to sell you.
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And yet under my interpretation YouTube is acting within the law now. They just weren't back then. YouTube does not have to check for whether or not every single upload is legit. They do not have a duty to police their site. What they do have is a duty to act when they have actual or apparent knowledge of infringement. Once they have that knowledge, they must act.
Now in recent years Google has instituted the contentID system - but that only solves the problem in respect of major corporate rightsholders. After all the law doesn't put such rightsholders into a special position so legally contentID has not really changed the situation..
ContentID has changed the situation considerably. By implementing such systems YouTube is taking action and showing their good faith. You must keep in mind that YouTube's actions don't have to be perfect. They just have to try.
On the post: Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation
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Have you read through the statement of facts in the case? Have you read the motions on both sides? I want you to figure this out for yourself. Pretend you're YouTube and you know what they know. Pretend too you have a duty to act in good faith in the face of your knowledge. What would you do? They did nothing, and that was not the legitimate answer.
Have a great afternoon, Richard.
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The knowledge was sufficient to trigger the duty to take action. YouTube chose to turn a blind eye.
We're going in circles at this point. Go ahead and get the last word.
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The statute does not say "vague suspicion." Those are your words. There is the takedown procedure, and there is the duty to act in the face of actual or apparent knowledge. The two are not mutually exclusive.
No - the fact is that the law has always required specific knowledge to create liability - the DMCA merely restates this general principle.
The law requires either actual knowledge or apparent knowledge. I don't understand why you think apparent knowledge is somehow not actionable.
So I ask you if youtube were aware that (say) 5% of the videos on their site are infringing - but don't know which ones - how are they supposed to proceed (in your opinion) to avoid liability?
You're confusing general knowledge with apparent knowledge. General knowledge, without more, does not make them lose their safe harbor. Apparent knowledge, which is general knowledge PLUS MORE, is a different story.
Have you read the case I linked for you? Have you read the cases mentioned in that case? Let's chat more after you have. I have work to do.
On the post: Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation
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And you have this strange notion that it's somehow impossible to act on knowledge that was obtained indirectly.
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Nobody denies that.
Perhaps you could actually provide a specific argument rather than trying to assert some kind of vague authority based on the subject of your studies...
That's fine. But drop the childish insults about my ability to understand English. I'll get you started if you want to read it for yourself. Columbia Picture v. Fung: http://www.ipinbrief.com/wp-content/uploads/2010/10/Columbia-Pictures-v-Fung.pdf
If you want to learn more, just read the cases cited in that quote. That's how I learn. I read one case, and then I read the cases cited in that case, and so on.
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I can only conclude that your understanding of the English language is defective.
Oh, really? How do you interpret this: "in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent"? Have you read any caselaw on how courts interpret it? Have you read any of the congressional reports from when they drafted it? Perhaps you should brush up on those things before you claim my understanding of English is defective. And if you're going to dismiss me with such a childish response, I'll not waste another second on you.
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The idea is quite simple. One type of knowledge is actual knowledge, based on direct evidence. Another type is apparent knowledge, which is based on indirect evidence. It's the idea of constructive knowledge. It's what you knew or should have known. This means that you cannot be willfully blind. Willful blindness is the same as knowledge in copyright law.
How are they supposed to act? Simple. They are supposed to act in good faith. What they can't do is do nothing when faced with such knowledge. Doing nothing is acting in bad faith, and the DMCA does not allow bad faith actors to moor in its safe harbors.
On the post: Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation
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Have you read the statute? It's plain meaning is about as clear as can be:
There are clearly two levels of knowledge that trigger the duty to act "to remove, or disable access to, the material": (1) "actual knowledge," and (2) "in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent."
The statute could not be any more clear on this point. Courts that have applied it have said the same.
Also - if those who framed the statue believed what you say then they would not have invented the DMCA notification process.
That is a non sequitur.
On the post: Torrent-Finder Plans To Fight Domain Seizure
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I'll give you a more relevant example. I'm sure most iPhone users haven't read the LOC ruling that jailbreaking is no longer a DMCA violation. So, if they jailbreak their iPhones, they believe they're breaking the law. Can they be arrested? No, they can't - because whether they know it or not, what they are doing is not illegal.
The mens rea for criminal copyright infringement is "willfully," no? I think you're make it way too complicated by bringing up strict liability (speeding) and the idea of whether impossibility is a defense (iPhone jailbreaking).
On the post: Torrent-Finder Plans To Fight Domain Seizure
By way of background... These seizures were done pursuant to 18 U.S.C. 2323. You can see that for yourself by reading the notice posted on http://torrent-finder.com/ The statute allows for the seizure of "[a]ny property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement under 17 U.S.C. 506.
In other words, by seizing the domain name in this way, the prosecutor had to produce probable cause that the domain name was being used to commit or facilitate criminal copyright infringement. Since we have no way of knowing for sure, I'm curious what people think the prosecutor's theory is.
Personally, I think perhaps the theory is that torrent-finder.com is facilitating others to commit criminal copyright infringement, and as such the domain name is subject to seizure. I also suspect that the operators of the site might be chargeable as accomplices in the infringement.
That's my theory. What's yours?
On the post: Torrent-Finder Plans To Fight Domain Seizure
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Do you get this at all?
I'm happy to chat with you, but there's absolutely no reason to be so rude. Obviously there is an underlying crime in the prosecutor's mind (and in the mind of the judge who agreed and signed the warrant), hence the seizure of property (the domain name) used in the furtherance of that crime. The necessary implication of a seizure pursuant to 18 U.S.C. 2323 (which is what we have here) is that there is an underlying crime. What we're trying to figure out is what crime the prosecutor has in mind. Do you have any theories? Do you think you can join the conversation in a constructive way?
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I was simply sharing my opinion. Just like everyone else. You got a problem with that?
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Intent does matter. That's what mens rea is in criminal law. Speeding is a strict liability offense, which is different.
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Re: Maybe off topic: Netflix as streaming-only
I just got two Roku boxes a couple of weeks ago and I absolutely love them. I'm ordering another one tomorrow (free shipping this weekend from Roku). I'd say look at what's available and decide whether you like the selection. Between Roku, Hulu, and Amazon on Demand, my TV needs are more than met.
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I just don't buy that torrent-finder is so innocent. They must have more than just a generalized knowledge that their site is primarily used for infringement. In fact, I'd be genuinely surprised if that wasn't the entire purpose of the site. Reading the message boards on there only verifies my suspicion. Do you think they set up shop to help people infringe, or do you think they set up shop to help people only find the legit torrents? Honestly, what do you think? If you think their intent is legit, then how do you explain the fact that they make absolutely no effort to block infringement? The issue isn't whether you can think of some possibility to justify their actions, no matter how remote the possibility. The issue is simply what are they actually doing, and why they're doing it. Their liability hinges on whether they are in good faith or bad. If you look at that site and see a good faith bunch of Boy Scouts, then I've got a bridge to sell you.
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I would be pretty worried if they did.
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