I did. I just don't think it's newsworthy. Embedding a YouTube video is not infringement. Not if you didn't upload the video in the first place. If he embedded a video that someone later flagged as their IP, how was he supposed to know up front that was going to happen? Funny how you defend YouTube's not knowing which clips are uploaded by Viacom, but you don't do the same for the Sherminator. :)
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One thing that I'm not sure about is whether or not the domain name was seized because the feds thought the operators of the domain name were criminals, or did they simply think that the domain name was being used by criminals, i.e., the users of the site and not the operators were the criminals. We don't really know which one it is, as far as I know.
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Why don't you read 17 U.S.C 506 paragraph 2 and then brush up on 17 U.S.C 512.
18 U.S.C. deals with criminal offenses only and since copyright, by default, is a civil offense 18 only applies if one is found guilty of willful infringement, which according to 17 U.S.C. 506 cannot be determined based on evidence of distribution or reproduction alone.
Also, torrent finder isn't distributing or reproducing the copyrighted content. You're gonna make a great lawyer someday ... but first you should learn the law.
I'm aware that criminal copyright infringement must be willful. Not sure when I indicated otherwise. And I'm aware that torrent-finder isn't distributing or reproducing the content. The argument is that they are accomplices.
Just to explain a bit further... 18 U.S.C. 2 states: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
In other words, what the civil law would call contributory infringement liability, the criminal law would call accomplice liability. Anyone who "aids, abets, counsels, commands, induces or procures" the commission of criminal infringement is guilty as if they had committed the infringement themselves.
None of it, since they're neither "reproducing" nor "distributing" .torrent files, much less actual copyrighted material.
Tell that to Grokster.
Can you name one single case where any entity was charged with criminal contributory infringement?
Of course not, since there is no such thing. Contributing to the infringement opens you up to liability for criminal infringement. It's subtle, but there's a difference. And even if no one in the history of the world has ever been convicted of criminal infringement, that is irrelevant to whether or not someone could be convicted of such.
I think that if this actually makes it to court (doubtful - I'm betting the goverment will drop the charges), a judge will agree with me. Probably won't even make it past summary judgement.
I really hope they do go to court to fight the seizure. I am pretty sure they aren't getting that domain name back. We shall see.
I didn't answer it because I have no idea. But seeing as Torrent Finder seems to be a search engine, then if you accuse it of being used for criminal copyright infringement, then, again, the same is true of Google. So, not quite sure what your point is, other than to undermine your basic argument.
You guys really seem to be hanging your hat on the notion that if torrent-finder is infringing, then Google must be as well. I think that's a bogus conclusion. When I have some more time I'll dig up some caselaw that's on point.
I certainly do. It's probably true that people used their site to search for infringing content. That doesn't mean they're doing anything criminal. They may be open to a civil lawsuit for contributory infringement, but that's all.
I'm not sure how you can think they're open to civil, but not criminal, liability. Which part of 17 U.S.C. 506 don't you think applies?
And, probably not even that. They do not run a tracker. They do not host .torrent files. They do not even directly link to .torrent files.
You need to analyze it under contributory infringement or inducement infringement analysis. The fact that do not run the tracker or host the .torrent files does not mean they are guaranteed to be in the clear. Far from it.
If torrent-finder is guilty of "criminal infringement," then all search engines that allow users to search for torrent files are also guilty of "criminal infringement." They are guilty whether or not those other search engines are also used for non-infringing purposes. They might not be "dedicated" to criminal infringement, but they are guilty of it.
I don't really follow you, and I don't think the law backs up your opinion.
Is that a position you really wish to take? Is that a position that you think is good for free speech, good for American business, or even good for rights holders themselves? I don't.
That's not the position I'm taking, so I don't see your point.
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So should criminal lawyers face the same punishment as the people they represent?
I mean, if the vast majority of a lawyer's clients turn out to be guilty, say 98%, should the lawyer have their property seized for providing a service to a criminal?
Criminal defense lawyers can represent people they know for a fact are guilty. To suggest that doing so is wrong is just erroneous.
Right now there is no law that makes it illegal to operate a search engine, even if it assists in searching for illegal material. What you have suggested repeatedly in this forum is that torrent finder can have their property seized based on probable cause ... that another person may have committed a civil infraction. The government can have all the probable cause in the world to suspect that many of torrent finders users have broken the law; however, they can't seize torrent finders property unless they have probable cause the torrent finder broke the law. bad lawyer, bad.
Huh? You should brush up on contributory and inducement infringement liability. Check out 18 U.S.C. 2 while you're there to see how accomplices can be held liable for the actions of those they aid and abet. Also, the issue here is whether the domain name was being used to commit crime. If there is probable cause that it was, it can be seized.
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Would you be surprised if someone did a statistical analysis of torrent-finder's traffic and found out that the vast majority of the searches on the sight were for infringing materials? I wouldn't. That was my point. Sorry if I worded it poorly.
Then throw MS in as well. 90%+ of infringers are using MS to obtain and use the illegal torrents.
We already went through this in another thread, but I'll explain it one last time. It doesn't matter that "90%+ of infringers are using MS." That's not analogous. The analogy would be that 90%+ of all the people using MS were using it for infringement. See the difference? The vast majority of people using MS are not using it to infringe. MS's use for infringement is only incidental.
Please stop speaking for me when you take your assumptions and label them as 'facts'. You're trying to make an argument that there is no legitimate material available through .torrent and that's just plain wrong.
"We" don't "all know that" the torrents found through TF are illegal... you presume so.
I have never said that there is "no legitimate material available through .torrent." Nor would I EVER say that because I know for a fact that it is not true. Don't put words in my mouth.
Of course we don't have all the facts, but that doesn't mean we can't make some educated guesses. In your opinion, which is of course just an opinion, are the vast majority of users of torrent-finder using it to find licit or illicit materials? Honestly, what do you think is the primary purpose of torrent-finder?
No one finds it hard to believe that "criminal justices" professionals such as yourself can find probable cause for anything if it suits them.
Your question was pointless and irrelevant and I can't help but notice that you love to try controlling the conversation with "questions" that "must be answered." Stupid debate tricks are for stupid lawyers
The issue is the seizure of torrent-finder.com based on probable cause. My question is very much neither pointless nor irrelevant. Mike was trying to make this about torrent search engines in general, and you are trying to make this about probable cause in general. Let's not talk in generalities. Let's talk about torrent-finder explicitly. Makes sense to me.
There is nothing illegal about a .torrent file. It is a small binary file which contains a link and a hash. There is no 'copyrighted' material contained in the file, and there's no reason why you shouldn't be allowed to search and d/l .torrent files to your heart's content. The 'infringement' doesn't actually happen until you decide to use the .torrent file in a .torrent program to download the actual content from the hive cluster.
Sure, you can download all the .torrent files you want, and that's not infringement. But we all know that the .torrent files torrent-finder is helping people locate are for the primary purpose of infringement. A court will see right through that smoke screen. This reminds me of a footnote I read the other day in Columbia Pictures v. Fung:
The fact that the dot-torrent files automatically cause content files to be downloaded and assembled ( see also supra Part II.A) rebuts Defendants' assertions that users' act of downloading dot-torrent files does not constitute actual copyright infringement. It may be true that the act of downloading a dot-torrent file is not itself a copyright-infringing action; but once that dot-torrent file triggers the process of downloading a content file, copyright infringement has taken place. Because dot-torrent files automatically trigger this content-downloading process, it is clear that dot-torrent files and content files are, for all practical purposes, synonymous. To conclude otherwise would be to elevate form over substance.
I actually think that Torrent-Finder has a pretty strong case as well, but as we've seen in our own comments, it's easier for folks who don't understand how search engines work to automatically assume Torrent Finder must be illegal because people use it to find infringing content.
Sometimes I feel your comments are pointed at me. :)
Do you find it hard to believe that there was probable cause that torrent-finder was being used for criminal infringement? I don't. I'm glad they're challenging this. I really am.
That doesn't answer the question. A defective DMCA notice will most likely still provide enough info for a site to do a takedown -- and yet, it's clear that you don't have to. So... there's a problem with the law. It disagrees with itself.
Sorry I didn't answer the question. I didn't really understand what it had to do with Viacom v. YouTube. I see the point you're making. I think a defective takedown can be interpreted a couple of different ways. Whether it adds to the service provider's level of knowledge or not would have to be determined on a case by case basis. With YouTube, there was more knowledge than just faulty takedown notices.
We're just going to go around in circles on this. Your interpretation means there's no safe habors, and that's certainly not what Congress intended and it's certainly not what the DMCA says.
And yet YouTube certainly has safe harbor now, even with my interpretation. They just didn't back then. Now they're trying to play by the rules. Back then they turned a blind eye.
Again, how do you turn a "blind eye" to infringement when you have no way of knowing for sure if the work is infringing?
The DMCA does not require you to know for sure. The infringement can be apparent, based on facts or circumstances. Viacom showed that YouTube had such knowledge. At the very least, they showed it to be a question of fact to be decided at a trial.
This is what gets me about the Viacom position. People who support seem to think it's "obvious" what's infringing. That's simply not true. While this is about Australian copyright law, I'll repeat what the judge said in the recent iiNet decision, which I think is rather compelling on this issue:
Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard.
Putting the burden on a third party to determine what is and what is not infringing simply makes no logical sense.
When you reach a situation like that, the laws are supposed to put the burden on the party where it makes the most sense. And let's be honest here: who is likely to have a better understanding if a particular work is infringing: the hosting company or the copyright holder? I'd argue the copyright holder.
Once they have actual or apparent knowledge, the DMCA shifts the burden to them by design. That's the balance Congress laid out. They don't have to be perfect, they just can't turn a blind eye. They have to make an effort in good faith. YouTube didn't do that.
If that's true, then you're arguing that the DMCA has text that requires a filtering system. Can you point to language that supports that? I can't find it.
I'm not arguing that. Implementing technological measures helps to show you're on the right side of the safe harbor, but nothing in the DMCA requires them.
I just read through the AIPLA brief, and I think they're making a mistake in saying that Viacom is asking for there to be a general knowledge level of awareness that would make service providers lose their safe harbor. I don't think that's what Viacom is asking for at all. They are saying that YouTube had general knowledge plus more. Of course general knowledge without more is insufficient. The DMCA says that either actual or apparent knowledge will suffice, and that's all Viacom wants the court to enforce.
That's quite a claim. I'm curious (genuinely) why you think the AIPLA -- a group who normally sides with your position on things -- would do that?
In all fairness, I think they were just repeating what the district court said. Of course, I think the district court was wrong. And for me, it's not about sides. In the district court hearing, I read the motions for summary judgment on both sides and then I read both responses to those motions. I just thought that Viacom made their case. At the very least they raised some genuine issues about whether YouTube had sufficient knowledge of the infringement under the statute and whether YouTube's response was sufficient. Don't get me wrong... I love YouTube and I use it all the time. I've uploaded hundreds of family videos to there to share with my family. I just think YouTube fostered an environment of infringement, willfully turning a blind eye so they could sell it off to the highest bidder.
But how do you respond to the points about how defective DMCA notices do not require any further action.
I think if someone issues a defective notice, the burden is on them to resubmit the notice correctly.
What it comes down to, is that I can't see how you can both say that only valid DMCA notices matter *and* that red flag infringement loses you liability. The two simply cannot work together.
In the end, I think what happened is that when Congress (well, the labels/studios...) wrote this part of the DMCA were thinking about two very different scenarios. The "red flag" was not talking about a situation like YouTube at all, but now Hollywood is trying to use it to expand the DMCA and effectively remove the safe harbors they agreed to only after a long fight with the ISPs. If I were thinking evilly, I'd suggest that the "red flags" language was put in on purpose to undermine the safe harbors, but I'm not sure the entertainment industry lobbyists are really that clever.
Either way, if your interpretation is correct, then the safe harbors are effectively superfluous as well. So. That leaves us in a troubling spot. You claim we can't interpret the law in a way that leaves one section superfluous, but either way that happens.
In that case, I think you have to go with the interpretation that is actually *reasonable* and that's the one where the safe harbor applies. And while you dismiss the legit videos being uploaded, I think you are doing so much too quickly, without recognizing how ridiculous that position is. The chilling effects of such a position makes it effectively impossible to run a user-generated content platform.
That's an interesting position, but I think it creates a situation where the DMCA just turns into a haven for pirates. That certainly was not what Congress intended, and it's certainly not what the DMCA says. I don't think this renders the safe harbors superfluous at all. The whole idea is to create safe harbors for innocent service providers. Not-so-innocent service providers who turn a blind eye to massive amounts of infringement cannot simply use their DMCA agent as a shield. I don't this makes it impossible to run a legit UGC platform, in fact, I think YouTube is doing just that right now. The problem is, that's not what they were doing when they first set up shop.
At no point is it clear that any of the Youtube people had clear and unequivocal evidence that any particular clip was infringing - only that some were commercially produced material that might be infringing.
However it is clear that they would remove the material if they received a complaint.
The undisputed facts show that YouTube was "aware of facts or circumstances from which infringement was apparent." The statute does not require there to be item-specific knowledge, and simply removing items after receiving a complaint is not necessarily sufficient to avoid losing safe harbor. That's just not what the DMCA says.
Your belief that this document amounts to the specific evidence that I asked for is wishful thinking.
And your belief that the DMCA requires such knowledge is erroneous and irrelevant. See 17 U.S.C. 512(c)(1)(A).
On the post: Copyright Troll Righthaven's Number One Supporter Caught Putting Infringing Material On His Own Blog
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I did. I just don't think it's newsworthy. Embedding a YouTube video is not infringement. Not if you didn't upload the video in the first place. If he embedded a video that someone later flagged as their IP, how was he supposed to know up front that was going to happen? Funny how you defend YouTube's not knowing which clips are uploaded by Viacom, but you don't do the same for the Sherminator. :)
On the post: Copyright Troll Righthaven's Number One Supporter Caught Putting Infringing Material On His Own Blog
On the post: Torrent-Finder Plans To Fight Domain Seizure
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On the post: Torrent-Finder Plans To Fight Domain Seizure
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18 U.S.C. deals with criminal offenses only and since copyright, by default, is a civil offense 18 only applies if one is found guilty of willful infringement, which according to 17 U.S.C. 506 cannot be determined based on evidence of distribution or reproduction alone.
Also, torrent finder isn't distributing or reproducing the copyrighted content. You're gonna make a great lawyer someday ... but first you should learn the law.
I'm aware that criminal copyright infringement must be willful. Not sure when I indicated otherwise. And I'm aware that torrent-finder isn't distributing or reproducing the content. The argument is that they are accomplices.
Anything else?
On the post: Torrent-Finder Plans To Fight Domain Seizure
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In other words, what the civil law would call contributory infringement liability, the criminal law would call accomplice liability. Anyone who "aids, abets, counsels, commands, induces or procures" the commission of criminal infringement is guilty as if they had committed the infringement themselves.
On the post: Torrent-Finder Plans To Fight Domain Seizure
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Tell that to Grokster.
Can you name one single case where any entity was charged with criminal contributory infringement?
Of course not, since there is no such thing. Contributing to the infringement opens you up to liability for criminal infringement. It's subtle, but there's a difference. And even if no one in the history of the world has ever been convicted of criminal infringement, that is irrelevant to whether or not someone could be convicted of such.
I think that if this actually makes it to court (doubtful - I'm betting the goverment will drop the charges), a judge will agree with me. Probably won't even make it past summary judgement.
I really hope they do go to court to fight the seizure. I am pretty sure they aren't getting that domain name back. We shall see.
On the post: Torrent-Finder Plans To Fight Domain Seizure
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You guys really seem to be hanging your hat on the notion that if torrent-finder is infringing, then Google must be as well. I think that's a bogus conclusion. When I have some more time I'll dig up some caselaw that's on point.
On the post: Torrent-Finder Plans To Fight Domain Seizure
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I'm not sure how you can think they're open to civil, but not criminal, liability. Which part of 17 U.S.C. 506 don't you think applies?
And, probably not even that. They do not run a tracker. They do not host .torrent files. They do not even directly link to .torrent files.
You need to analyze it under contributory infringement or inducement infringement analysis. The fact that do not run the tracker or host the .torrent files does not mean they are guaranteed to be in the clear. Far from it.
If torrent-finder is guilty of "criminal infringement," then all search engines that allow users to search for torrent files are also guilty of "criminal infringement." They are guilty whether or not those other search engines are also used for non-infringing purposes. They might not be "dedicated" to criminal infringement, but they are guilty of it.
I don't really follow you, and I don't think the law backs up your opinion.
Is that a position you really wish to take? Is that a position that you think is good for free speech, good for American business, or even good for rights holders themselves? I don't.
That's not the position I'm taking, so I don't see your point.
On the post: Torrent-Finder Plans To Fight Domain Seizure
Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal
I mean, if the vast majority of a lawyer's clients turn out to be guilty, say 98%, should the lawyer have their property seized for providing a service to a criminal?
Criminal defense lawyers can represent people they know for a fact are guilty. To suggest that doing so is wrong is just erroneous.
Right now there is no law that makes it illegal to operate a search engine, even if it assists in searching for illegal material. What you have suggested repeatedly in this forum is that torrent finder can have their property seized based on probable cause ... that another person may have committed a civil infraction. The government can have all the probable cause in the world to suspect that many of torrent finders users have broken the law; however, they can't seize torrent finders property unless they have probable cause the torrent finder broke the law. bad lawyer, bad.
Huh? You should brush up on contributory and inducement infringement liability. Check out 18 U.S.C. 2 while you're there to see how accomplices can be held liable for the actions of those they aid and abet. Also, the issue here is whether the domain name was being used to commit crime. If there is probable cause that it was, it can be seized.
On the post: Torrent-Finder Plans To Fight Domain Seizure
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On the post: Torrent-Finder Plans To Fight Domain Seizure
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We already went through this in another thread, but I'll explain it one last time. It doesn't matter that "90%+ of infringers are using MS." That's not analogous. The analogy would be that 90%+ of all the people using MS were using it for infringement. See the difference? The vast majority of people using MS are not using it to infringe. MS's use for infringement is only incidental.
On the post: Torrent-Finder Plans To Fight Domain Seizure
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Right. And the vast majority of .torrent files lead to illicit files.
On the post: Torrent-Finder Plans To Fight Domain Seizure
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"We" don't "all know that" the torrents found through TF are illegal... you presume so.
I have never said that there is "no legitimate material available through .torrent." Nor would I EVER say that because I know for a fact that it is not true. Don't put words in my mouth.
Of course we don't have all the facts, but that doesn't mean we can't make some educated guesses. In your opinion, which is of course just an opinion, are the vast majority of users of torrent-finder using it to find licit or illicit materials? Honestly, what do you think is the primary purpose of torrent-finder?
On the post: Torrent-Finder Plans To Fight Domain Seizure
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Your question was pointless and irrelevant and I can't help but notice that you love to try controlling the conversation with "questions" that "must be answered." Stupid debate tricks are for stupid lawyers
The issue is the seizure of torrent-finder.com based on probable cause. My question is very much neither pointless nor irrelevant. Mike was trying to make this about torrent search engines in general, and you are trying to make this about probable cause in general. Let's not talk in generalities. Let's talk about torrent-finder explicitly. Makes sense to me.
On the post: Torrent-Finder Plans To Fight Domain Seizure
Re: a .torrent file is NOT illegal
Sure, you can download all the .torrent files you want, and that's not infringement. But we all know that the .torrent files torrent-finder is helping people locate are for the primary purpose of infringement. A court will see right through that smoke screen. This reminds me of a footnote I read the other day in Columbia Pictures v. Fung:
On the post: Torrent-Finder Plans To Fight Domain Seizure
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I can't help but point out that you didn't at all answer my question.
On the post: Torrent-Finder Plans To Fight Domain Seizure
Sometimes I feel your comments are pointed at me. :)
Do you find it hard to believe that there was probable cause that torrent-finder was being used for criminal infringement? I don't. I'm glad they're challenging this. I really am.
On the post: Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation
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Sorry I didn't answer the question. I didn't really understand what it had to do with Viacom v. YouTube. I see the point you're making. I think a defective takedown can be interpreted a couple of different ways. Whether it adds to the service provider's level of knowledge or not would have to be determined on a case by case basis. With YouTube, there was more knowledge than just faulty takedown notices.
We're just going to go around in circles on this. Your interpretation means there's no safe habors, and that's certainly not what Congress intended and it's certainly not what the DMCA says.
And yet YouTube certainly has safe harbor now, even with my interpretation. They just didn't back then. Now they're trying to play by the rules. Back then they turned a blind eye.
Again, how do you turn a "blind eye" to infringement when you have no way of knowing for sure if the work is infringing?
The DMCA does not require you to know for sure. The infringement can be apparent, based on facts or circumstances. Viacom showed that YouTube had such knowledge. At the very least, they showed it to be a question of fact to be decided at a trial.
This is what gets me about the Viacom position. People who support seem to think it's "obvious" what's infringing. That's simply not true. While this is about Australian copyright law, I'll repeat what the judge said in the recent iiNet decision, which I think is rather compelling on this issue:
Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard.
Putting the burden on a third party to determine what is and what is not infringing simply makes no logical sense.
When you reach a situation like that, the laws are supposed to put the burden on the party where it makes the most sense. And let's be honest here: who is likely to have a better understanding if a particular work is infringing: the hosting company or the copyright holder? I'd argue the copyright holder.
Once they have actual or apparent knowledge, the DMCA shifts the burden to them by design. That's the balance Congress laid out. They don't have to be perfect, they just can't turn a blind eye. They have to make an effort in good faith. YouTube didn't do that.
If that's true, then you're arguing that the DMCA has text that requires a filtering system. Can you point to language that supports that? I can't find it.
I'm not arguing that. Implementing technological measures helps to show you're on the right side of the safe harbor, but nothing in the DMCA requires them.
I just read through the AIPLA brief, and I think they're making a mistake in saying that Viacom is asking for there to be a general knowledge level of awareness that would make service providers lose their safe harbor. I don't think that's what Viacom is asking for at all. They are saying that YouTube had general knowledge plus more. Of course general knowledge without more is insufficient. The DMCA says that either actual or apparent knowledge will suffice, and that's all Viacom wants the court to enforce.
On the post: Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation
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In all fairness, I think they were just repeating what the district court said. Of course, I think the district court was wrong. And for me, it's not about sides. In the district court hearing, I read the motions for summary judgment on both sides and then I read both responses to those motions. I just thought that Viacom made their case. At the very least they raised some genuine issues about whether YouTube had sufficient knowledge of the infringement under the statute and whether YouTube's response was sufficient. Don't get me wrong... I love YouTube and I use it all the time. I've uploaded hundreds of family videos to there to share with my family. I just think YouTube fostered an environment of infringement, willfully turning a blind eye so they could sell it off to the highest bidder.
But how do you respond to the points about how defective DMCA notices do not require any further action.
I think if someone issues a defective notice, the burden is on them to resubmit the notice correctly.
What it comes down to, is that I can't see how you can both say that only valid DMCA notices matter *and* that red flag infringement loses you liability. The two simply cannot work together.
In the end, I think what happened is that when Congress (well, the labels/studios...) wrote this part of the DMCA were thinking about two very different scenarios. The "red flag" was not talking about a situation like YouTube at all, but now Hollywood is trying to use it to expand the DMCA and effectively remove the safe harbors they agreed to only after a long fight with the ISPs. If I were thinking evilly, I'd suggest that the "red flags" language was put in on purpose to undermine the safe harbors, but I'm not sure the entertainment industry lobbyists are really that clever.
Either way, if your interpretation is correct, then the safe harbors are effectively superfluous as well. So. That leaves us in a troubling spot. You claim we can't interpret the law in a way that leaves one section superfluous, but either way that happens.
In that case, I think you have to go with the interpretation that is actually *reasonable* and that's the one where the safe harbor applies. And while you dismiss the legit videos being uploaded, I think you are doing so much too quickly, without recognizing how ridiculous that position is. The chilling effects of such a position makes it effectively impossible to run a user-generated content platform.
That's an interesting position, but I think it creates a situation where the DMCA just turns into a haven for pirates. That certainly was not what Congress intended, and it's certainly not what the DMCA says. I don't think this renders the safe harbors superfluous at all. The whole idea is to create safe harbors for innocent service providers. Not-so-innocent service providers who turn a blind eye to massive amounts of infringement cannot simply use their DMCA agent as a shield. I don't this makes it impossible to run a legit UGC platform, in fact, I think YouTube is doing just that right now. The problem is, that's not what they were doing when they first set up shop.
On the post: Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation
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However it is clear that they would remove the material if they received a complaint.
The undisputed facts show that YouTube was "aware of facts or circumstances from which infringement was apparent." The statute does not require there to be item-specific knowledge, and simply removing items after receiving a complaint is not necessarily sufficient to avoid losing safe harbor. That's just not what the DMCA says.
Your belief that this document amounts to the specific evidence that I asked for is wishful thinking.
And your belief that the DMCA requires such knowledge is erroneous and irrelevant. See 17 U.S.C. 512(c)(1)(A).
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