Re: If Viacom wins it's going to be downhill from there.
I highly doubt the internet would get as bad you predict. You still have to remember that the internet isn't only in America. The US has some legislative influence, but its more in the arena of net neutrality type ideas. The laws they pass will only affect companies in the US. If an out-of-country site is popular enough and has a dedicated management staff, it seems it will always find a way to stay around (example: pirate bay).
In terms of streaming embedded videos, I believe a different section of the Safe Harbor provision applies to YouTube
17 U.S.C. § 512 (a) states:
Transitory Digital Network Communications. -
A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if -
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.
If this section *does* apply to YouTube in terms of embedded videos, they may have enough wiggle room to get by. They pass (1) because the user initiates the stream by clicking play OR the web designer initiates it if they write the code to automatically play (if thats possible). They obviously pass (2). They also clearly pass (3). They *technically* pass (4), but this is where it requires wordplay. One might say they keep a copy of the material on their servers BUT the actual provision says they're not allowed to keep any copies made during the transmission beyond what's reasonable. Technically, they don't keep any newly created copies (that I know of). The original copy is all they keep and that was already stored on their servers. So no copy is made during transmission. (5) I really can't comment on. I believe the form that they transmit it is the same that they store on their servers. I really don't know though. If thats not the case, then they might have a problem.
I'm no lawyer. I'm just reading this stuff and going on what I think it means. I could be wrong. This may not apply to YouTube at all. In any case, no matter what kind of copyright infringement Viacom claims, YouTube is protected as long as they abide by all the applicable rules of The Safe Harbor Provision.
Re: Re: DMCA Safe Harbor (Viacom's Case has wheels?)
Just a note on how a case could be built against Viacom.
Here's the portion that would apply to Viacom. This is Section (3) of the section (C) as above. I only included subsection (1) of 2. The second would only apply to YouTube.
(3) Elements of notification. -
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Viacom can be called into question on (3)(A)(vi). Viacom has pretty much made a statement, under the penalty of perjury, that they were authorized to act on behalf of the owners of all the works they had taken down. However, this has been shown to be the case as there have been numerous stories of people's videos being identified as infringing by Viacom accidentally. So, basically, Viacom has committed perjury... and there's really no argument to say they haven't.
Information Residing on Systems or Networks At Direction of Users. -
(1) In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, 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;
(B) Does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
This is only the first subsection of section C. The two other subsections deal with The Notification Agent, and also The Elements of Notifcation (which I believe there is a strong case for Viacom being in violation). In any case, I'm referring only to the quoted subsection above from now on.
YouTube seems to be clear on subsection (1)(C). They remove items when notified. There's a strong case that its clear on (1)(B) as well. It does not receive financial benefit due *directly* to infringement. Even if you make a case that it does, in my opinion, it's still in the clear because it has no control over that activity. So, (1)(B) is debatable, at least from the view of a non-lawyer-type such as myself. In my opinion, they're also clear on (1)(A). Keep in mind, parts (1)(A)(ii) and (1)(A)(iii) are combined with an "or."
Apologies if my post is difficult to read. Not being a lawyer makes it a little difficult to know how to correctly refer to various subsections of subsections of subsections (so on and so forth).
I agree with the anon commenter above. If they introduce a rating system, it would pretty much fix the problem. So, maybe the interface is pretty good, but it can always be better. Once you're past the category level, it just pretty much becomes a big list of games in alphabetical order. If you could rank it by rating, so be it. I can't recall if they have a way to rank by number of downloads, but if they do, then its the user's fault they can't figure out what they're doing. And if MS doesn't want to blame the user, then it comes back to the interface not being intuitive enough for those users.
On the post: Dear Viacom: It's In Your Best Interest To Lose The YouTube Lawsuit
Re: If Viacom wins it's going to be downhill from there.
On the post: Viacom's New Argument Against YouTube: Embedding Videos Removes Safe Harbors
On embedded videos
17 U.S.C. § 512 (a) states:
Transitory Digital Network Communications. -
A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if -
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.
If this section *does* apply to YouTube in terms of embedded videos, they may have enough wiggle room to get by. They pass (1) because the user initiates the stream by clicking play OR the web designer initiates it if they write the code to automatically play (if thats possible). They obviously pass (2). They also clearly pass (3). They *technically* pass (4), but this is where it requires wordplay. One might say they keep a copy of the material on their servers BUT the actual provision says they're not allowed to keep any copies made during the transmission beyond what's reasonable. Technically, they don't keep any newly created copies (that I know of). The original copy is all they keep and that was already stored on their servers. So no copy is made during transmission. (5) I really can't comment on. I believe the form that they transmit it is the same that they store on their servers. I really don't know though. If thats not the case, then they might have a problem.
I'm no lawyer. I'm just reading this stuff and going on what I think it means. I could be wrong. This may not apply to YouTube at all. In any case, no matter what kind of copyright infringement Viacom claims, YouTube is protected as long as they abide by all the applicable rules of The Safe Harbor Provision.
On the post: Viacom's New Argument Against YouTube: Embedding Videos Removes Safe Harbors
Re: Re: DMCA Safe Harbor (Viacom's Case has wheels?)
Here's the portion that would apply to Viacom. This is Section (3) of the section (C) as above. I only included subsection (1) of 2. The second would only apply to YouTube.
(3) Elements of notification. -
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Viacom can be called into question on (3)(A)(vi). Viacom has pretty much made a statement, under the penalty of perjury, that they were authorized to act on behalf of the owners of all the works they had taken down. However, this has been shown to be the case as there have been numerous stories of people's videos being identified as infringing by Viacom accidentally. So, basically, Viacom has committed perjury... and there's really no argument to say they haven't.
On the post: Viacom's New Argument Against YouTube: Embedding Videos Removes Safe Harbors
Re: DMCA Safe Harbor (Viacom's Case has wheels?)
Information Residing on Systems or Networks At Direction of Users. -
(1) In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, 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;
(B) Does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
This is only the first subsection of section C. The two other subsections deal with The Notification Agent, and also The Elements of Notifcation (which I believe there is a strong case for Viacom being in violation). In any case, I'm referring only to the quoted subsection above from now on.
YouTube seems to be clear on subsection (1)(C). They remove items when notified. There's a strong case that its clear on (1)(B) as well. It does not receive financial benefit due *directly* to infringement. Even if you make a case that it does, in my opinion, it's still in the clear because it has no control over that activity. So, (1)(B) is debatable, at least from the view of a non-lawyer-type such as myself. In my opinion, they're also clear on (1)(A). Keep in mind, parts (1)(A)(ii) and (1)(A)(iii) are combined with an "or."
Apologies if my post is difficult to read. Not being a lawyer makes it a little difficult to know how to correctly refer to various subsections of subsections of subsections (so on and so forth).
On the post: Microsoft Apparently Still Confused About The Long Tail Concept
Re: I disagree
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