It isn't that they are mutually exclusive, it's a question of what the main goal of the site is.
YouTube isn't about giving you a place to store your videos, the main thrust of YT is entertainment. They are more about the presentation of videos, and not of the storage.
What does that mean? It means they aren't an "innocent host", but a content provider. They source the material from different places, and sort and present it in a contextual manner, not at all in keeping with the idea of pure file storage, which would likely be separated by user. Instead, their site's thrust is entertainment (open their front page to see, very little about storage and all about "what's new"). In a legal sense, it greatly diminishes YouTube's chances to claim innocence and ignorance of the content of their site.
Having read the document, I am not surprised to see Viacom pushing on a point that I feel has plenty of merit: That YouTube is not a user directed file storage site, but in fact an entertainment site.
The redacted area? I suspect that it shows that the 100 clips were uploaded to show how this could be done, and that the 100 clips were used in a manner that the uploading users did not intend, or similar. It would likely also show that the 100 clips were clips that had previously been DMCA'ed to YouTube, and that were still allowed to be re-uploaded by another user (Viacom test accounts). Something along those lines would be a very strong indication of how the YouTube system both failed to protect rights holders, and that they did little to police their own entertainment system. It is just a guess, but I suspect much of it is in there.
this one has come up. That might also be an interesting tack to push.
I actually think at this particular moment, Viacom is more likely to get a favorable judgment than in the past. I also think that this is going to end up in the Supreme Court at some point, and both sides may just be posturing up for the final showdown.
Good idea... let's send all the policemen back to the station, save all that money by not having cars on patrol. Let's get rid of those pesky boarder guards too, they just collect tons of useless information.
Yup, America can become a bunch of angry curmudgeons with assault rifles all hiding in their houses, taking potshots at anyone who knocks on the door or walks by. Nobody will take a report, that's just useless data.
Yup. Good plan. At least the security lines at the airport will be shorter, who needs to check people?
performance rights are different from usage rights. The collection agencies would collect, and pay back the writers by the formulas in place.
It is pretty much impossible to monitor each performance and figure out what is what (considering the costs involved).
How much does it cost? Even if the 100% of the $300 went to fees, which it does not, it would be about $1 per day (5 day week, plus some weekends if you so desire). play 10 songs an hour, play for 4 or 5 hours... say 50 songs. Net cost, 2 cents per song.
in the end, the amount is so little as to be laughable. If they can't busker up 2 cents a song average, perhaps it's time to stop.
I wonder what they want to charge you for humming or singing along?
Unless you are making money from it, nothing. Your comment is sarcastic as heck, and really adds nothing to the discussion.
Buskers are making a living off of performing music, mostly other people's music. Why should they get a free ride, when if they perform in a night club, there would be fees?
As for the facility paying the fee, it is pretty much the same here. The rent for space has gone up in accordance with costs. Clubs do the same thing, just showing it differently, perhaps paying a band $100 less a night, or claiming the first 30 ticket sales as "rent".
The real world is very different from 2 minutes at a white board, isn't it?
It's a question of risk / reward. You don't see the Junior Senator from California or the like asking about it, because for them there is more of the table. For the Senator from Oregon, he risks what, pissing off the one movie product that comes to the state each year?
Basically, he can ask the question because he has nothing to lose by people being upset about him asking the question. It isn't about the RESULTS of the treaty, it's about stepping on people's toes.
It's politics, and the question from the wrong person would be very impolitic indeed.
I would wonder how big the film and music production business is in Oregon. How much is actually at risk for this senator? Will thousands of jobs be lost?
I think that the two courts that found them enforceable got it right. In part, I think they realize that there are few real alternatives that would be practical.
Can you image every time you visit a new website, you are forced off to a terms and conditions page,with a check box next to each item, that requires you to specifically acknowledge each item in the T&C? That certainly isn't practical, now is it? We would spend more time online clicking terms, and almost no time actually enjoying the content.
I am thinking next time they would use naming that could lead to this (rather obvious) lawsuit. I mean, gees, you could search google itself for android and nexus a couple of years ago, and the PKD stuff would come up. It's not rocket science.
I understand business models are changing, musicians have to face the fact that people are now "sharing" their work, with little or no respect for the time and effort required to create new material.
I was just thinking that learning to have lawyer thinking is the same as learning to sell the proverbial t-shirts, because both require an artist to learn something that is both not natural to them, and that absorbs time that would be better spent on being an artist.
If they have to learn a few more things, they will likely not have any time to be artists anymore, which will resolve the issue entirely.
The thing is, I've spent a lot of time learning how to make art. I have spent no time learning how to negotiate the licensing of music. These are very different skills! It's bizarre that in order to share my art
I read this and I almost spit my drink on the monitor. This is a comment on Techdirt, the site that tells musicians that being able to write songs and create art is not worth a penny, but selling lotttttts of t-shirts is a real skill?
The cost of proving damages should be bourne by the plantiff.
Sorry, but fail, as the cost of determining the damages would in fact be a damage itself, so the plaintiff would just pass it off to the defendant. Under your idea, the harder it is to prove, the more work involved to prove it, the more expensive it would get for a losing defendant.
The only assumption is the size of the file, the rest is fairly much exactly how it works.
In fact, I am using the Mike Masnick theory of file sharing: You aren't sharing the whole file with any one person. I am just taking it to the logical conclusion that each block is shared with a different person.
5000 blocks means you shared at least part of the file with 5000 people.
When those people each share their "combined" file (from 5000 other users), and then share you part out again, that means you piece goes to 1 more person. Since you sent out 5000 pieces, that means you pieces are now with 10,000 people. It just goes from there. Even if the original sharer only shares a single file one time, he is part and parcel of 5000 infringements on the first go around, and 5000 more, and so on.
Zcat: Your math fails for one reason: Without each piece, the infringement would not be complete, the file wouldn't work,and thus it would fail. Each piece is just as important as the next. By sharing 5000 pieces, the user is directly involved in 5000 infringements, and a contributor to however many more times those pieces are shared again.
So in the end it isn't one infringement, but participation (conspiring with others) to generate 5000 infringements.
cc, you forget something very important: The single share repeats over and over.
all those people trading today turn around and trade it again tomorrow. It isn't like everyone gets together once for a single trade around, it is an ongoing process. Even when you stop sharing a song, parts of what you shared are in turn being reshared, over and over again, to another group of people, who in turn share it on to other groups.
If a song is made up of, I dunno, say 5000 pieces, and you share 1 piece with 5000 different people, you just contributed to 5000 violations. When each of those people share your piece, that is 5000 more violations you are part of.
It's an unavoidable process. It never stops either, as little pieces of the pieces are forever moving around. It's a chain of events that never stops until everyone has the file, or until nobody offers the file online anymore.
File sharing is a bit like a pyramid scheme, a very few people at the top and within a few layers, you have most of the planet involved. Someone sharing a song even once potentially has a hand in all of those other "shares". So now, is the person who shares a file once liable for all that comes from their sharing? It is clear that without their action, there might not have been this sharing. So if they didn't help a dozen people get a copy, and those dozen in turn didn't help a dozen, and so on... everyone in the chain is part of the process that makes millions of copies.
The problem is you can delete that one copy off of their one computer, but you haven't dealt with the digital tail of copies that emanated from their single copy.
The other question is the one of harm. It's a red herring, as far as I am concerned, because unless the artist (or rights holder, whoever they may be) approved the song for sharing, the act of sharing is in itself harm, even if it contributes in some odd way to the artist being better known or whatever. It is the artist/right holders choice, not anyone else.
Presumed damages also involve to some extent a deterrent factor. I cannot picture Joel Tenenbaum setting up a torrent server. The judgment against him is clearly in an amount that would deter future bad acts. The amounts are likely never to make the rights holder "whole", because as I mentioned above, even if you shut down Joel's computer, the echos of that share will go on forever.
On the post: Viacom: Court Should Grant Summary Judgment Over YouTube, But It's A Secret Why
Re: Re:
YouTube isn't about giving you a place to store your videos, the main thrust of YT is entertainment. They are more about the presentation of videos, and not of the storage.
What does that mean? It means they aren't an "innocent host", but a content provider. They source the material from different places, and sort and present it in a contextual manner, not at all in keeping with the idea of pure file storage, which would likely be separated by user. Instead, their site's thrust is entertainment (open their front page to see, very little about storage and all about "what's new"). In a legal sense, it greatly diminishes YouTube's chances to claim innocence and ignorance of the content of their site.
On the post: Man Sues Neighbor For Not Turning Off WiFi And Cell Phone
On the post: More Surveillance Can Make Us Less Safe
Re: Re:
I haven't figured out how to get the Homer Simpson "I was being sarcastic" thing going.
On the post: Viacom: Court Should Grant Summary Judgment Over YouTube, But It's A Secret Why
The redacted area? I suspect that it shows that the 100 clips were uploaded to show how this could be done, and that the 100 clips were used in a manner that the uploading users did not intend, or similar. It would likely also show that the 100 clips were clips that had previously been DMCA'ed to YouTube, and that were still allowed to be re-uploaded by another user (Viacom test accounts). Something along those lines would be a very strong indication of how the YouTube system both failed to protect rights holders, and that they did little to police their own entertainment system. It is just a guess, but I suspect much of it is in there.
Not sure, I wonder if:
http://techdirt.com/article.php?sid=20091223%2F1924027493&op=sharethis&threaded=true& amp;sp=1
this one has come up. That might also be an interesting tack to push.
I actually think at this particular moment, Viacom is more likely to get a favorable judgment than in the past. I also think that this is going to end up in the Supreme Court at some point, and both sides may just be posturing up for the final showdown.
On the post: More Surveillance Can Make Us Less Safe
Yup, America can become a bunch of angry curmudgeons with assault rifles all hiding in their houses, taking potshots at anyone who knocks on the door or walks by. Nobody will take a report, that's just useless data.
Yup. Good plan. At least the security lines at the airport will be shorter, who needs to check people?
On the post: Vancouver Train System To Charge Buskers Huge Fees To Play In Stations
Re: Re:
It is pretty much impossible to monitor each performance and figure out what is what (considering the costs involved).
How much does it cost? Even if the 100% of the $300 went to fees, which it does not, it would be about $1 per day (5 day week, plus some weekends if you so desire). play 10 songs an hour, play for 4 or 5 hours... say 50 songs. Net cost, 2 cents per song.
in the end, the amount is so little as to be laughable. If they can't busker up 2 cents a song average, perhaps it's time to stop.
On the post: Rednex Release New Single On Pirate Bay, Explain Why Record Labels Will Die
On the post: Vancouver Train System To Charge Buskers Huge Fees To Play In Stations
Unless you are making money from it, nothing. Your comment is sarcastic as heck, and really adds nothing to the discussion.
Buskers are making a living off of performing music, mostly other people's music. Why should they get a free ride, when if they perform in a night club, there would be fees?
As for the facility paying the fee, it is pretty much the same here. The rent for space has gone up in accordance with costs. Clubs do the same thing, just showing it differently, perhaps paying a band $100 less a night, or claiming the first 30 ticket sales as "rent".
The real world is very different from 2 minutes at a white board, isn't it?
On the post: Senator Wyden Demands ACTA Details Be Revealed
Re: Re: Re: Oregon
It's a question of risk / reward. You don't see the Junior Senator from California or the like asking about it, because for them there is more of the table. For the Senator from Oregon, he risks what, pissing off the one movie product that comes to the state each year?
Basically, he can ask the question because he has nothing to lose by people being upset about him asking the question. It isn't about the RESULTS of the treaty, it's about stepping on people's toes.
It's politics, and the question from the wrong person would be very impolitic indeed.
On the post: Senator Wyden Demands ACTA Details Be Revealed
Re: Oregon
I am thinking the answer is no.
On the post: Another Court Finds 'Browserwrap' Terms Are Enforceable
Can you image every time you visit a new website, you are forced off to a terms and conditions page,with a check box next to each item, that requires you to specifically acknowledge each item in the T&C? That certainly isn't practical, now is it? We would spend more time online clicking terms, and almost no time actually enjoying the content.
What other choices really exist?
On the post: Philip K. Dick Estate Sends Google Cease And Desist Over Nexus One Name
Re: Re: Re: Re: Re: Re: Re:
On the post: Artist Thinking vs. Lawyer Thinking
Re: Re: (TAM's drinking problems)
I was just thinking that learning to have lawyer thinking is the same as learning to sell the proverbial t-shirts, because both require an artist to learn something that is both not natural to them, and that absorbs time that would be better spent on being an artist.
If they have to learn a few more things, they will likely not have any time to be artists anymore, which will resolve the issue entirely.
On the post: Artist Thinking vs. Lawyer Thinking
I read this and I almost spit my drink on the monitor. This is a comment on Techdirt, the site that tells musicians that being able to write songs and create art is not worth a penny, but selling lotttttts of t-shirts is a real skill?
It's laughable.
On the post: Lord Lucas Proposes That Copyright Holders Detail Actual Damages From Infringement Under Mandelson Bill
Re: Re: Re:
Sorry, but fail, as the cost of determining the damages would in fact be a damage itself, so the plaintiff would just pass it off to the defendant. Under your idea, the harder it is to prove, the more work involved to prove it, the more expensive it would get for a losing defendant.
On the post: Lord Lucas Proposes That Copyright Holders Detail Actual Damages From Infringement Under Mandelson Bill
Re: Re: Re: Re: Re: Re: Re:
In fact, I am using the Mike Masnick theory of file sharing: You aren't sharing the whole file with any one person. I am just taking it to the logical conclusion that each block is shared with a different person.
5000 blocks means you shared at least part of the file with 5000 people.
When those people each share their "combined" file (from 5000 other users), and then share you part out again, that means you piece goes to 1 more person. Since you sent out 5000 pieces, that means you pieces are now with 10,000 people. It just goes from there. Even if the original sharer only shares a single file one time, he is part and parcel of 5000 infringements on the first go around, and 5000 more, and so on.
Zcat: Your math fails for one reason: Without each piece, the infringement would not be complete, the file wouldn't work,and thus it would fail. Each piece is just as important as the next. By sharing 5000 pieces, the user is directly involved in 5000 infringements, and a contributor to however many more times those pieces are shared again.
So in the end it isn't one infringement, but participation (conspiring with others) to generate 5000 infringements.
On the post: Lord Lucas Proposes That Copyright Holders Detail Actual Damages From Infringement Under Mandelson Bill
Re: Re: Re: Re: Re:
all those people trading today turn around and trade it again tomorrow. It isn't like everyone gets together once for a single trade around, it is an ongoing process. Even when you stop sharing a song, parts of what you shared are in turn being reshared, over and over again, to another group of people, who in turn share it on to other groups.
If a song is made up of, I dunno, say 5000 pieces, and you share 1 piece with 5000 different people, you just contributed to 5000 violations. When each of those people share your piece, that is 5000 more violations you are part of.
It's an unavoidable process. It never stops either, as little pieces of the pieces are forever moving around. It's a chain of events that never stops until everyone has the file, or until nobody offers the file online anymore.
On the post: eMusic: Prices Went Up, But Artists Aren't Seeing Any Of That Cash
*sigh*
On the post: Lord Lucas Proposes That Copyright Holders Detail Actual Damages From Infringement Under Mandelson Bill
Re: Re: Re:
File sharing is a bit like a pyramid scheme, a very few people at the top and within a few layers, you have most of the planet involved. Someone sharing a song even once potentially has a hand in all of those other "shares". So now, is the person who shares a file once liable for all that comes from their sharing? It is clear that without their action, there might not have been this sharing. So if they didn't help a dozen people get a copy, and those dozen in turn didn't help a dozen, and so on... everyone in the chain is part of the process that makes millions of copies.
The problem is you can delete that one copy off of their one computer, but you haven't dealt with the digital tail of copies that emanated from their single copy.
The other question is the one of harm. It's a red herring, as far as I am concerned, because unless the artist (or rights holder, whoever they may be) approved the song for sharing, the act of sharing is in itself harm, even if it contributes in some odd way to the artist being better known or whatever. It is the artist/right holders choice, not anyone else.
Presumed damages also involve to some extent a deterrent factor. I cannot picture Joel Tenenbaum setting up a torrent server. The judgment against him is clearly in an amount that would deter future bad acts. The amounts are likely never to make the rights holder "whole", because as I mentioned above, even if you shut down Joel's computer, the echos of that share will go on forever.
On the post: Bakery Claims Trademark On Smiley Face Cookies; Sues Competing Cookie Firm
Re:
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