I honestly don't think it's a fact-twist, but more about brevity.
The court held "[t]hat Counterclaimants Democratic Underground and David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting
until after this suit was filed."
Since DU didn't post the article, the way to get at them for infringement would be ... secondary liability (which is a nice, short, blog-friendly descriptive phrase).
The Court in essence was asked to rule that 1) they didn't do it and 2) even if they did, it was fair use. One moots the other, but this was about a declaration of DU's rights and obligations rather than a defensive issue of liability. And the court agreed with DU.
None of the sub-groups are Mormons. They're splitter groups not recognized by the church. They would be excommunicated from the formal church (or probably were already).
He types fast. Title probably should say instead of "secondary liability" - "Failure to Designate DMCA Agent for Safe Harbor Doesn't Necessarily Mean Direct Liability Absent Volition" ... but that doesn't tweet well.
I think anyone who bought an iPhone thinking Siri would be anything more than a mildly useful curiosity does not deserve a refund for lack of ... er, maybe looking into it a bit first.
All California causes of action, one California lawyer out of six. Damages folks? Is everyone's damage the same such that it's amenable to a class action? Did it tell them all to invest in Yahoo!? Maybe it was scanned badly so the Court couldn't actually read it. Can you spell "Motion to Dismiss?" I knew ya could.
Perhaps the MPAA is right in a sense. Most people want crap. We know that because crappy movies tend to make the biggest bucks; because the comment cards at pre-screenings show people don't get anything with remotely complex narratives ("Er, Memento is good, but can you re-edit it in proper chronology?"); because reality TV flourishes; because Matchbox 20 was allowed to exist. And the MPAA is the crapmeister for the lowest common denominator.
But ... we need the LCD, because if they were to disappear, we might become the LCD. And it's so much more rewarding to be smarter then everyone else, like the MPAA. Dang, I suppose I should reach out to them, they being on the same level of being smarter than those others. Sold, everything on this site is a lie.
Semantics aside, find yourself in a US courtroom on a copyright case -- on either side -- and you'll probably want to stick with copyright being a "property right," per a couple hundred years of jurisprudence that says so.
Also ask them if they have ever personally sued a website for user-generated content. That inexplicably happens a lot despite site immunity (see Profession Eric Goldman's blog - he is not kind to them either).
Didn't anybody learn anything from Battlestar Galactica (besides Apollo being a terrible actor)? The Luddite Bill Adama refuses to connect to the grid; Cylons infiltrate the defense systems; world ends; Adama's ship Galactica survives. Duh.
In a complementary move, Hotfile has made changes to its Affiliate Program. Affiliate payments will no longer be based on download volume or referrals from websites. An affiliate will earn a percentage of the price of premium memberships purchased by users who download the affiliate’s uploaded file(s).
The upside of this is generally changing a policy like this cannot be used as evidence of liability against Hotfile. (Subsequent Rememdial Measures - the law wants you to fix the pothole, so the fact you did can't be used as evidence that it was negligently maintained in the first place.)
So Hotfile may be able to say their affiliate program no longer has the (nefarious) motivators cited by MPAA, but MPAA shouldn't be able to say, "See, they fixed it so it must be illegal."
The point being that they can use the automated system to find the potentially infringing materials, but before a letter goes out virtually guaranteeing content will be removed, a human being should look at it to determine if it even contains the material claims (see bogus TechDirt Sopa article takedown), and after that, whether the content is actually fair use (see Prince in background for a few seconds while baby dances). Have at it for automated finding systems. DMCA Takedowns have to be signed under penalty of perjury, and thus far, robots are not legally competent to do that.
To be fair, and despite what you read on this blog concerning legislation via lobby (much of which I agree with), many many laws based on simple ideas become complicated because they are drafted in a good faith attempt to stave off unintended consequences, i.e., collateral damage And we know that unintended consequences has been a major focus in this forum.
But you cannot possibly anticipate every fact scenario, and cases with facts that don't fit start showing up, courts try to pigeonhole the facts to get the "right" result, at times make bad case law, then the legislature says, "That's not what we meant," and tries to amend to cover the new unanticipated fact scenario, and the spiral continues toward total morass.
Interestingly, that's the way the system was designed: Law by committee, interpretation by the courts, blah blah blah.
As an anectodal, I had a class once where a group of us were charged with drafting a simple statue. After weeks of "what ifs" from the parties, we came up with a document pushing 1000s of words. Too many variables to consider, too many scenarios to contemplate, i.e., complicated.
On the post: What To Do When Facebook Suggests You Become Friends With Your Husband's Other Wife
Re: Re: Re: Re: Re: One to many
I start a community that marries goats and wears goofy hats, and call ourselves Catholic, but we still wouldn't be Catholics.
On the post: New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability
Re: Re: Re:
The court held "[t]hat Counterclaimants Democratic Underground and David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting
until after this suit was filed."
Since DU didn't post the article, the way to get at them for infringement would be ... secondary liability (which is a nice, short, blog-friendly descriptive phrase).
The Court in essence was asked to rule that 1) they didn't do it and 2) even if they did, it was fair use. One moots the other, but this was about a declaration of DU's rights and obligations rather than a defensive issue of liability. And the court agreed with DU.
On the post: Copying Leads To Competition, Competition Leads To Innovation
On the post: New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability
Re:
On the post: What To Do When Facebook Suggests You Become Friends With Your Husband's Other Wife
Re: Re: Re: One to many
On the post: New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability
On the post: What To Do When Facebook Suggests You Become Friends With Your Husband's Other Wife
Re: One to many
On the post: Class Action Lawsuit Filed Against Apple Because Siri Doesn't Always Work Right
Re: Refund
On the post: Class Action Lawsuit Filed Against Apple Because Siri Doesn't Always Work Right
On the post: MPAA Exec: Only We Can Make Content That People Want
Another Angle
But ... we need the LCD, because if they were to disappear, we might become the LCD. And it's so much more rewarding to be smarter then everyone else, like the MPAA. Dang, I suppose I should reach out to them, they being on the same level of being smarter than those others. Sold, everything on this site is a lie.
On the post: Thinking Of Copyright As Property Is As Natural As Thinking Of Smells As Property
But ... but ... legal terms of art
On the post: For Those Freaking Out Over Pinterest's Terms Of Service, Have You Stopped Using Every Other Internet Site Yet?
Re: Re: Re:
On the post: For Those Freaking Out Over Pinterest's Terms Of Service, Have You Stopped Using Every Other Internet Site Yet?
Re: On a side note....
On the post: For Those Freaking Out Over Pinterest's Terms Of Service, Have You Stopped Using Every Other Internet Site Yet?
Re: Re:
(Oh, and a smart lawyer might have run this by a lawyer who did know this area. Lawyers just love to talk about stuff they know.)
On the post: For Those Freaking Out Over Pinterest's Terms Of Service, Have You Stopped Using Every Other Internet Site Yet?
Re:
Ask a personal injury lawyer about SEC requirements, you might as well as your dog.
On the post: If Phishing Email Can Kill NY Power Grid, Lack Of Cybersecurity Legislation Is Not The Problem
Battlestar Galactica anyone?
On the post: MPAA's Argument Against Hotfile Assumes Any Popular Content Online Must Be Infringing
Hotfile changed affiliate policy
In a complementary move, Hotfile has made changes to its Affiliate Program. Affiliate payments will no longer be based on download volume or referrals from websites. An affiliate will earn a percentage of the price of premium memberships purchased by users who download the affiliate’s uploaded file(s).
The upside of this is generally changing a policy like this cannot be used as evidence of liability against Hotfile. (Subsequent Rememdial Measures - the law wants you to fix the pothole, so the fact you did can't be used as evidence that it was negligently maintained in the first place.)
So Hotfile may be able to say their affiliate program no longer has the (nefarious) motivators cited by MPAA, but MPAA shouldn't be able to say, "See, they fixed it so it must be illegal."
On the post: EFF Argues That Automated Bogus DMCA Takedowns Violate The Law And Are Subject To Sanctions
Re:
On the post: EFF Argues That Automated Bogus DMCA Takedowns Violate The Law And Are Subject To Sanctions
Freaking Finally!
On the post: Teaching Style, Not Computers, Appears To Be Biggest Factor In Classroom Distraction
Re: Re:
But you cannot possibly anticipate every fact scenario, and cases with facts that don't fit start showing up, courts try to pigeonhole the facts to get the "right" result, at times make bad case law, then the legislature says, "That's not what we meant," and tries to amend to cover the new unanticipated fact scenario, and the spiral continues toward total morass.
Interestingly, that's the way the system was designed: Law by committee, interpretation by the courts, blah blah blah.
As an anectodal, I had a class once where a group of us were charged with drafting a simple statue. After weeks of "what ifs" from the parties, we came up with a document pushing 1000s of words. Too many variables to consider, too many scenarios to contemplate, i.e., complicated.
Next >>