Where is the hypocrisy? We're pointing out that this is an issue, and highlighting that Tor is looking for ways to try to deal with it.
But aren't you being a hypocrite? Over the past few years, I've had many, many posts routed to your spam filter when I tried to post through Tor. When posts are routed to your spam filter, sometimes it takes hours until they show up and sometimes they don't show up at all. So your site is a part of the "third threat to Tor's success: a growing number of websites treat users from anonymity services differently." I know for a fact that you have treated posters using Tor differently. Do you deny this? (Since you deny that you're routing posts from my home IP to your spam filter, I'm sure you won't respond. Sadly, integrity and honesty don't appear to be your strong suit.)
In this case, however, my best guess would be that EMI can grant broadcast/public performance rights only, and Disney doesn't have the right to create and distribute derivative works.
There's 20 of them, each with a different song. These are included as bonus features on DVDs, and they play them on the Disney channel between shows as filler. I find it hard to believe that Disney wouldn't obtain the proper licenses, but it's certainly possible.
"Disney is Disney! OBVIOUSLY they could do no wrong!"
Fantastic reasoning.
That wasn't my reasoning. Of course Disney can do wrong. Maybe they're wrong here. I just think that Disney leaving it up after being put on notice shows that maybe the mistake is Zimmerman's. After all, Zimmerman's lawyer admits that Disney may have a license. Why Zimmerman wouldn't ask the other parties that have the ability to license the work whether they did so is beyond me. I'm not sure where you get the notion that I think Disney is incapable of mistakes. Everybody makes mistakes. Me, you, Disney, Zimmerman, everybody.
Yes, large sophisticated companies made up of thousands of individual employees don't make mistakes.
That's a strange response. Of course Disney makes mistakes. Everybody makes mistakes. The video could be infringing, and it could be a mistake on Disney's part. I simply said that leaving up the video after being put on notice "leads me to believe that maybe they have a license." If it were infringing, I believe it's likely that Disney would take it down. And if Disney thinks it's noninfringing, I believe it's likely it would leave it up.
While this may very well be a case of the legal teams/Rightsholders (does deadmau5 own his own songs?) not knowing the left hand from the right, I find your logic extremely amusing...
Namely, that an alleged infringer deserves the benefit of the doubt because they've kept their video up, while the legal team sending takedowns is probably in the wrong for the same reason.
I didn't really explain my reasoning, but I'm happy to do so now. Disney is a sophisticated rightholder, so I find it hard to believe that it would use the song without permission. And if it did discover such an infringement, I believe it would respond quickly--especially considering its opposition to Zimmerman's registration and the publicity involved.
That said, the lawyer's letter leaves a lot of wiggle room and is quite unclear. He mentions that Zimmerman granted rights in the Composition to EMI. And he only claims that Zimmerman’s rights in the Master have been violated. So presumably, whatever rights in the Composition Zimmerman granted to EMI are the only rights in the Composition that he thinks are being violated. Yet, he also says Zimmerman owns the "copyright and/or exclusive rights" in the Composition. From this I deduce that, while Zimmerman may own some exclusive rights in the Composition, he clearly doesn’t own the rights at issue here since there’s no claim that Disney is violating them.
As for the Master, he claims that Zimmerman’s rights are being violated, but then he also says that Zimmerman granted “certain rights thereto” to Virgin and Ultra that possibly are also being infringed. Which is it? Unless they’re joint owners, I don’t think this makes sense. He notes that "Zimmerman is unaware of any license(s) between Disney and EMI, Virgin, and/or Ultra" granting Disney the right to use the Composition or the Master. So he doesn't even know if Disney has a license. Perhaps he should have checked on whether Disney had a license before sending the letter.
So basically it claims infringement, but then admits that maybe other parties who hold some unspecified rights might have granted a license. Combine this with the sophistication of Disney, both to gain the proper rights ahead of time and to timely respond to proper takedown notices, and I arrive at my conclusion “that maybe they have a license.” Make sense?
The music was on a "re-micks" (ha ha, get it?) page on Disney's website that has since been taken down -- but not before Deadmau5's lawyers sent a takedown letter over it.
I disagree. I think the Court brought some much needed clarity to the public performance right, and by extension, to the distribution and display rights. Now we know what "to the public" means, definitively.
How many times have attempts to disclose ISP account holder information been slapped down? It's the same ISP and the same request, no?
Double jeopardy under the Fifth Amendment only applies to criminal cases. In a civil case, it's res judicata (aka claim preclusion) that prevents re-litigation of claims. See: http://www.law.cornell.edu/wex/res_judicata
If I understand your other question correctly, an ISP disclosure request is not a determination on the merits--so res judicata would not apply.
IANAL, but as far as I can tell, this is now NEW litigation. They were sued by the networks, appealed all the way up to the Supreme Court, and the networks won.
Now Aero has initiated a new round of litigation, a new and separate 'case'. I don't believe it is a continuation of the previous litigation (from a 'this case' or legal perspective, but it is still part of an 'ongoing litigation strategy'), therefore they are new free to embrace new legal arguments as it's a new case.
No, it doesn't work like that. Once you sue somebody and lose, you can't sue them again over the same underlying issue. So it's still the same litigation. The thing that got appealed to the Supreme Court was just part of a pretrial motion for a preliminary injunction. That motion is now back before the district court, which is what the parties are arguing about now. The Supreme Court didn't say whether the injunction should be issued. It just said that the district court and Second Circuit were wrong about how the public performance right works.
Sections 111 (statutory licenses for cable systems) and 512 (DMCA safe harbors for service providers) both operate as defenses. The plaintiff shows that the defendant did something that on its face violates the plaintiff's rights, and then the defendant shows that some defense excuses the violation. Here, the Supreme Court said that Aereo on its face violates the plaintiff's public performance rights. The burden then shifts to Aereo to show that some defense excuses the violation. Aereo can win by showing that it has a defense, such as a license under 111 or a safe harbor under 512.
It's important too to realize that the Supreme Court never ruled that Aereo is a "cable system" under 111. Nor did it say that it's not. The issue of whether Aereo is "cable system" under 111 was simply not before the Court. So Aereo is not agreeing with the Court when it argues that it's a "cable system." To borrow Mike's terms, the Court said Aereo quacks like a duck, but it didn't say Aereo is a duck.
Certain defenses are waived if not raised early in the litigation. I don't think 111 or 512 would be waived, but I do suspect Aereo would have to amend its answer in order to raise them now--assuming it didn't raise them in its prior answer. I'm not exactly sure how it works, though. Any Civ Pro wonks in the house?
How does that make any sense? Sure wouldn't fly at a strip club.
Video on demand and YouTube, for example, use one-to-one transmissions, yet the performances are still public. The Court held that the public/private distinction turns on the user's relationship to the content being streamed. And not that this HAS NOTHING TO DO with the cable length.
I think he meant to say, Aereo is functionally equivalent to a cable system because it aggregates [other people's video] content and transmits it to members of the public. Of course that would also make Youtube, Vimeo, Twitch, et al. cable companies as well. So maybe, Aereo is functionally equivalent to a cable system because it aggregates [other people's video] content [without the rights holder's permission] and transmits it to members of the public would work better. But that would turn a pirate streaming site into a cable company. It's hard to come up with a categorization system for cable service that is jointly exhaustive, mutually exclusive, and uses a consistent principle [the three principles of logical categorization], that doesn't outlaw a bunch of other stuff that few want to see outlawed, which is probably why the Supreme Court demurred.
Well, YouTube and the like don't use antennas to capture broadcasts that are then retransmitted to members of the public, so I don't think they are functionally equivalent to a cable system under Aereo. Nevertheless, YouTube and the like ARE publicly performing. Being functionally equivalent to a cable system is sufficient, but not necessary, to find that the service performs. And note that YouTube and the like are not "outlawed" even though they perform. They instead are protected by the DMCA safe harbors.
If Aereo is infringing, what's different about Dropbox?
With Dropbox, the user has a preexisting relationship to the content. And despite the cable being very long, Dropbox is not publicly performing if someone streams something they've stored on Dropbox's servers.
Mike plays the cable length card to point out why the decision is stupid.
I fear you've missed my point. Mike presents that cable length argument as if it were the actual law. It's not. It doesn't make the law look stupid because it doesn't represent the actual law. Does Mike really think all cloud-based storage services are infringing because they use long cables? Highly doubtful. Yet he pretends like the cable length thing is all that matters. It's not.
Yes, but the supreme court is wrong. I'm talking about what's real, not what the Supreme Court says.
I couldn't care less about what the court has ruled. I'm talking about what's right and reasonable.
Well, that's the problem. I want to talk about the actual law because, legally speaking, that's what's real. You want to talk about what you think is "real," that is, what you think the law should be even though it's not actually the law. I'm not interested in discussing that.
You're using a poor ruling by judges that were confused about the technology that was put into place. Just because they claim it's a cable service doesn't mean they fit the definition (functionality) of a cable service.
You can use the law all you want, but the point being made here is that FUNCTIONALLY the TiVo and Aereo are almost the same device (other than where the hardware resides).
Course just because the technology is functionally the same does not mean that it's legal, it just means it SHOULD all be either legal or illegal.
The functionality is not the same. Aereo records content the user has not yet acquired. Roamio does not. This difference was central to the Court's holding that Aereo performs publicly. You can try and brush it off as stupid judges not understanding things, but that holding is in fact the law of the land thanks to Aereo.
On the post: It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5
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I think I'd make a great juror. I've never done it, but I'd like to.
On the post: Tor Asks For Help In Keeping Net Anonymity As An Option For Anyone, At Any Site
Re: Re: Hypocrisy much?
But aren't you being a hypocrite? Over the past few years, I've had many, many posts routed to your spam filter when I tried to post through Tor. When posts are routed to your spam filter, sometimes it takes hours until they show up and sometimes they don't show up at all. So your site is a part of the "third threat to Tor's success: a growing number of websites treat users from anonymity services differently." I know for a fact that you have treated posters using Tor differently. Do you deny this? (Since you deny that you're routing posts from my home IP to your spam filter, I'm sure you won't respond. Sadly, integrity and honesty don't appear to be your strong suit.)
On the post: It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5
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In this case, however, my best guess would be that EMI can grant broadcast/public performance rights only, and Disney doesn't have the right to create and distribute derivative works.
I left out one thing. This "Re-Micks" video isn't just a one-off, it's part of a series of videos Disney put out: http://en.wikipedia.org/wiki/Have_a_Laugh!#Re-Micks
There's 20 of them, each with a different song. These are included as bonus features on DVDs, and they play them on the Disney channel between shows as filler. I find it hard to believe that Disney wouldn't obtain the proper licenses, but it's certainly possible.
On the post: It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5
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Fantastic reasoning.
That wasn't my reasoning. Of course Disney can do wrong. Maybe they're wrong here. I just think that Disney leaving it up after being put on notice shows that maybe the mistake is Zimmerman's. After all, Zimmerman's lawyer admits that Disney may have a license. Why Zimmerman wouldn't ask the other parties that have the ability to license the work whether they did so is beyond me. I'm not sure where you get the notion that I think Disney is incapable of mistakes. Everybody makes mistakes. Me, you, Disney, Zimmerman, everybody.
On the post: It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5
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That's a strange response. Of course Disney makes mistakes. Everybody makes mistakes. The video could be infringing, and it could be a mistake on Disney's part. I simply said that leaving up the video after being put on notice "leads me to believe that maybe they have a license." If it were infringing, I believe it's likely that Disney would take it down. And if Disney thinks it's noninfringing, I believe it's likely it would leave it up.
On the post: It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5
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Namely, that an alleged infringer deserves the benefit of the doubt because they've kept their video up, while the legal team sending takedowns is probably in the wrong for the same reason.
I didn't really explain my reasoning, but I'm happy to do so now. Disney is a sophisticated rightholder, so I find it hard to believe that it would use the song without permission. And if it did discover such an infringement, I believe it would respond quickly--especially considering its opposition to Zimmerman's registration and the publicity involved.
That said, the lawyer's letter leaves a lot of wiggle room and is quite unclear. He mentions that Zimmerman granted rights in the Composition to EMI. And he only claims that Zimmerman’s rights in the Master have been violated. So presumably, whatever rights in the Composition Zimmerman granted to EMI are the only rights in the Composition that he thinks are being violated. Yet, he also says Zimmerman owns the "copyright and/or exclusive rights" in the Composition. From this I deduce that, while Zimmerman may own some exclusive rights in the Composition, he clearly doesn’t own the rights at issue here since there’s no claim that Disney is violating them.
As for the Master, he claims that Zimmerman’s rights are being violated, but then he also says that Zimmerman granted “certain rights thereto” to Virgin and Ultra that possibly are also being infringed. Which is it? Unless they’re joint owners, I don’t think this makes sense. He notes that "Zimmerman is unaware of any license(s) between Disney and EMI, Virgin, and/or Ultra" granting Disney the right to use the Composition or the Master. So he doesn't even know if Disney has a license. Perhaps he should have checked on whether Disney had a license before sending the letter.
So basically it claims infringement, but then admits that maybe other parties who hold some unspecified rights might have granted a license. Combine this with the sophistication of Disney, both to gain the proper rights ahead of time and to timely respond to proper takedown notices, and I arrive at my conclusion “that maybe they have a license.” Make sense?
On the post: It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5
Was it taken down? Looks up to me: http://video.disney.com/watch/ghosts-n-stuff-re-micks-4cc34ca4636bec7bd7bd38a3
If Disney doesn't take it down soon, that leads me to believe that maybe they have a license.
On the post: As Expected, Aereo Pleads Its Case For Survival
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On the post: As Expected, Aereo Pleads Its Case For Survival
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How many times have attempts to disclose ISP account holder information been slapped down? It's the same ISP and the same request, no?
Double jeopardy under the Fifth Amendment only applies to criminal cases. In a civil case, it's res judicata (aka claim preclusion) that prevents re-litigation of claims. See: http://www.law.cornell.edu/wex/res_judicata
If I understand your other question correctly, an ISP disclosure request is not a determination on the merits--so res judicata would not apply.
On the post: As Expected, Aereo Pleads Its Case For Survival
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Now Aero has initiated a new round of litigation, a new and separate 'case'. I don't believe it is a continuation of the previous litigation (from a 'this case' or legal perspective, but it is still part of an 'ongoing litigation strategy'), therefore they are new free to embrace new legal arguments as it's a new case.
No, it doesn't work like that. Once you sue somebody and lose, you can't sue them again over the same underlying issue. So it's still the same litigation. The thing that got appealed to the Supreme Court was just part of a pretrial motion for a preliminary injunction. That motion is now back before the district court, which is what the parties are arguing about now. The Supreme Court didn't say whether the injunction should be issued. It just said that the district court and Second Circuit were wrong about how the public performance right works.
On the post: As Expected, Aereo Pleads Its Case For Survival
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It's important too to realize that the Supreme Court never ruled that Aereo is a "cable system" under 111. Nor did it say that it's not. The issue of whether Aereo is "cable system" under 111 was simply not before the Court. So Aereo is not agreeing with the Court when it argues that it's a "cable system." To borrow Mike's terms, the Court said Aereo quacks like a duck, but it didn't say Aereo is a duck.
On the post: As Expected, Aereo Pleads Its Case For Survival
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On the post: As Expected, Aereo Pleads Its Case For Survival
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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Video on demand and YouTube, for example, use one-to-one transmissions, yet the performances are still public. The Court held that the public/private distinction turns on the user's relationship to the content being streamed. And not that this HAS NOTHING TO DO with the cable length.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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Well, YouTube and the like don't use antennas to capture broadcasts that are then retransmitted to members of the public, so I don't think they are functionally equivalent to a cable system under Aereo. Nevertheless, YouTube and the like ARE publicly performing. Being functionally equivalent to a cable system is sufficient, but not necessary, to find that the service performs. And note that YouTube and the like are not "outlawed" even though they perform. They instead are protected by the DMCA safe harbors.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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With Dropbox, the user has a preexisting relationship to the content. And despite the cable being very long, Dropbox is not publicly performing if someone streams something they've stored on Dropbox's servers.
On the post: Crime And Punishment? 33 Months In Jail For Filming And Uploading Fast & Furious 6
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He most certainly did not explain WHY he thinks it's immoral.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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I fear you've missed my point. Mike presents that cable length argument as if it were the actual law. It's not. It doesn't make the law look stupid because it doesn't represent the actual law. Does Mike really think all cloud-based storage services are infringing because they use long cables? Highly doubtful. Yet he pretends like the cable length thing is all that matters. It's not.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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I couldn't care less about what the court has ruled. I'm talking about what's right and reasonable.
Well, that's the problem. I want to talk about the actual law because, legally speaking, that's what's real. You want to talk about what you think is "real," that is, what you think the law should be even though it's not actually the law. I'm not interested in discussing that.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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You can use the law all you want, but the point being made here is that FUNCTIONALLY the TiVo and Aereo are almost the same device (other than where the hardware resides).
Course just because the technology is functionally the same does not mean that it's legal, it just means it SHOULD all be either legal or illegal.
The functionality is not the same. Aereo records content the user has not yet acquired. Roamio does not. This difference was central to the Court's holding that Aereo performs publicly. You can try and brush it off as stupid judges not understanding things, but that holding is in fact the law of the land thanks to Aereo.
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