The Next Big Copyright Battle? The 'Real-Time' Web

from the it's-coming dept

The history of copyright law is pretty straightforward: basically every time some new technology comes along that shows just how obsolete copyright law is, rather than recognize that fact, entrenched interests warn politicians about how they'll just die if they don't get new protections, and another layer of protectionism is slapped onto the law -- not (as copyright law intends) for incentives to create new works, but as a policy to protect an old industry. That's created a house of cards, where copyright law keeps getting stretched and twisted every time it's adjusted. In 1909 the problem was player pianos. A big part of the reason for changing copyright law in 1909 was the fear that player pianos would destroy the market for sheet music and even (potentially) live performances. So the law was changed... but the player piano soon died. But the copyright law it gave us stuck around. When radio came about, we got changes to copyright law to deal with that. When the internet came about, we got the DMCA. So what's next? Perhaps the internet's new big buzzword: "the real-time web."

We've already talked about how it was only a matter of time until someone was sued for "lifecasting." With video recording and streaming technologies getting cheaper and cheaper, there are a number of services out there that let people broadcast anything they're doing. For many of them, it's a lot of fun... but in almost every case, some copyright lawyers could make an argument that it represents copyright infringement. If you are videotaping, and you walk past a TV broadcasting a copyrighted show, some would argue that's infringement. If you happen to hear some music, that's infringement. Yes, there may be a fair use defense, but this is hardly a situation where people are going to want to go to court just to defend the fact that they walked past a TV.

In reality, this should (again) demonstrate the silliness of copyright laws right now. The fact that merely walking past a TV while streaming video could be considered a copyright violation should be seen as a joke. It's legal if I see it with my own eyes, but if I include a virtual eye that lets others see it as well... that's infringement? Yet, there are already lawsuits over this sort of thing, and Liz Gannes at NewTeeVee has a thoughtful article wondering if copyright holders are going to start complaining that the DMCA is insufficient to deal with these sorts of situations.

As it stands now, the DMCA already goes too far in allowing someone to claim they are a copyright holder and demand a takedown of content they believe is infringing. To retain the DMCA's safe harbors and avoid potential liability, a site then has to take down the content. This gives copyright holders (or even those who claim to be copyright holders) tremendous power to force content offline for at least a few days. Yet, the fear is that in a "real-time" world, that's not fast enough. If I'm watching a baseball game, and turn on my camera, by the time MLB or whoever the broadcaster is discovers it and sends out the takedown, the game is already going to be over. They could still sue me and perhaps that acts as a deterrent, but we've see how little a deterrent mass lawsuits have had in the music industry.

So what happens next? My guess is that we'll see some sort of push to change copyright laws again to try to deal with this "problem." Perhaps even something that would put liability on any company that enables "real-time" streaming. The content companies won't want the burden of actually changing their business model, so they'll try to dump the burden of enforcing the old business model on the innovators. Hopefully, though, there are enough folks out there who won't simply let such a change go through unchallenged.


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    Anonymous Coward, May 27th, 2009 @ 10:02pm

    Actually, DCMA has the exact opposite effect: it has permitted large and wide scale infringement, with companies complying with notices piecemeal, rather than wholesale. So Youtube is never taken down, just a video, and only after a complaint.

    Basically, DMCA puts the burden of proof on the copyright holder, rather than the person publishing. It should be that if you put up something, you are the copyright holder or have permissions to do so, otherwise just don't do it.

    As it is now, copyright holders can end up spending much of their lives just trying to keep their material from being ripped off and used on a daily basis with impunity.

     

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      Mike Masnick (profile), May 27th, 2009 @ 10:37pm

      Re:

      Actually, DCMA has the exact opposite effect: it has permitted large and wide scale infringement, with companies complying with notices piecemeal, rather than wholesale. So Youtube is never taken down, just a video, and only after a complaint.

      This is flat out ignorant of both the DMCA and history. The DMCA permitted nothing of the sort. YouTube shouldn't be taken down because taking down all of YouTube just because SOME misuse it would be both a violation of the basic tenets of copyright law and the first amendment.

      Basically, DMCA puts the burden of proof on the copyright holder, rather than the person publishing.

      Actually, it does not. The copyright holder doesn't have the "burden of proof." They just need to file a takedown. No burden of proof at all. Do you know what burden of proof means?

      It should be that if you put up something, you are the copyright holder or have permissions to do so, otherwise just don't do it.

      I'm not sure what that has to do with the DMCA. Sure, that would be lovely if that were the case. But it's not. So why not learn to deal with it?

      As it is now, copyright holders can end up spending much of their lives just trying to keep their material from being ripped off and used on a daily basis with impunity.

      That's also completely untrue. While copyright holders do need to file notices, YouTube now has automated systems that do the job for copyright holders. But why let facts get in the way?

       

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        cram, May 28th, 2009 @ 12:21am

        Re: Re:

        "The copyright holder doesn't have the "burden of proof." They just need to file a takedown. No burden of proof at all."

        The same goes for the uploaders as well. There's absolutely no burden of proof on them. The Youtube warning is a joke, a lot like porn sites saying "Enter only if you are over 18"! As though that's gonna stop people from doing what they want to, even if they ae told it's illegal to do so.

        "As it is now, copyright holders can end up spending much of their lives just trying to keep their material from being ripped off and used on a daily basis with impunity.

        That's also completely untrue. While copyright holders do need to file notices, YouTube now has automated systems that do the job for copyright holders. But why let facts get in the way?"

        No, that's not completely untrue. How can you say it is? There are tons and tons of video sharing sites. Only Youtube has a system for copyright holders. Why let facts...oh forget, when have facts ever bothered you!

         

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          Mike Masnick (profile), May 28th, 2009 @ 12:46am

          Re: Re: Re:

          The same goes for the uploaders as well. There's absolutely no burden of proof on them.

          Yes, that's correct and it's a good thing. Imagine how much of an internet we wouldn't have if before you could do anything online you had to prove you owned the proper rights. Oh my. Talk about killing the internet...

          No, that's not completely untrue. How can you say it is? There are tons and tons of video sharing sites. Only Youtube has a system for copyright holders.

          The specific site mentioned by the original commenter was YouTube. Either way, most of the major sites all run auto takedown services. The other ones are so minor as to not really matter.

          But, the bigger point is that if you're running around issuing takedowns, you've already lost. You're wasting resources that could be used towards putting in place a better business model.

          In the meantime, the law and case law are both quite clear that FOR VERY GOOD REASONS, the copyright holder should be the one to enforce their copyright. Having it any other way would be an incredibly stifling position.

          Are you really suggesting such a system would be a good thing?

           

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            Anonymous Coward, May 28th, 2009 @ 1:44am

            Re: Re: Re: Re:

            um, the blue highlights may have attendency to break secondary and even tertiary conversations which you don't get involved in. Oft, I've noticed you post to several threads a few things at once, and you may want to re-think that blue highlight thing.

             

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              Anonymous Coward, May 28th, 2009 @ 3:17am

              Re: Re: Re: Re: Re:

              not to comment to myself, as that would be self defeating, but really, if you're looking for attention, cool. can I address you as The Wizard Of Oz?

               

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        Anonymous Coward, May 28th, 2009 @ 5:29am

        Re: Re:

        Mike, Youtube is but a single site, and is still working in the same manner as always:

        - Random people can put up anything.
        - Copyright holder must locate that particular video
        - Copyright holder must notify youtube.
        - You tube removes videos
        - Second random person puts up anything
        - Copyright holder must locate that particular video
        - Copyright holder must notify youtube.
        - You tube removes videos

        You can see how this gets old fast.

        "Actually, it does not. The copyright holder doesn't have the "burden of proof." They just need to file a takedown. No burden of proof at all. Do you know what burden of proof means?"

        Yes - it means that the copyright holder must do something to assert their rights, that the assumption is that they have no rights, and they have to prove it. The assumption made by youtube (and pretty much every web2.0 company) is that the guy submitting is does have the rights to do so. YouTube does not require it's posters to prove those facts. They shift that burden to the true copyright holders, who must file documents for each item to show they have not permitted this use. DMCA is a free pass system, placing the burden of policing on the copyright holder, in the meanwhile youtube profits from the use of the video,music, or whatever in question without the right to do so. When notified, they remove it, but they do not in any way have to pay the copyright holder for the time used.

        "That's also completely untrue. While copyright holders do need to file notices, YouTube now has automated systems that do the job for copyright holders. But why let facts get in the way?"

        Youtube is a single site on an internet of millions of sites. Copyright holders under DMCA are obliged to contact each site that misused material for each individual misuse, and they gain nothing from the effort, because the way DMCA is structured there is no easy way to sue for infringement.

        Basically, DMCA is a free pass system. It allows sites to use whatever they want, as long as you take it down if you get notified, otherwise, go ahead without any proof you have rights, because there is no issue.

        Mike, in all seriousness, because of my business I am very aware of the implications of DMCA on a day to day basis (people I work with). You may have a theoretical opinion, but the reality, where the "rubber meets the road" is that DMCA gives people with no rights an incredible free pass that they have leveraged into various business models. Pre-DMCA legislation, Youtube would have been shut down the first week, because they would have likely been found liable for all of the violations on their site, and been sued into the dirt. With the poorly written and poorly considering DMCA, their business model now works with little chance of losing in court, providing they are prompt to remove stuff on notification. They can continue to knowingly use material that they suspect is in violation, provided they are not specifically notified.

        It is a horrible system that does nobody any favors, except those that profit from the free time.

         

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          Xanthir, FCD, May 28th, 2009 @ 6:13am

          Re: Re: Re:

          Mike, in all seriousness, because of my business I am very aware of the implications of DMCA on a day to day basis (people I work with). You may have a theoretical opinion, but the reality, where the "rubber meets the road" is that DMCA gives people with no rights an incredible free pass that they have leveraged into various business models.

          Do you honestly think that you are unique in rubbing up against copyright infringement and the DMCA? Do you really believe that this is a 'theoretical' concern for Mike? Have you ever tried searching for a TechDirt post title on the open internet?

          TechDirt has *loads* of infringers. They're all over the place. THEY ARE LEGION. And yet, TechDirt continues. Mike chooses not to fight them, because he's built his business right, where the content itself isn't what he's selling, precisely *because* it can be infringed with basically zero effort. Techdirt's posts, Mike's words, Mike's primary effort on this site are an infinite good and thus not capable of being reasonably monetized directly. Instead, Mike monetizes in other ways, using his infinite good as advertisement.

          Pre-DMCA legislation, Youtube would have been shut down the first week, because they would have likely been found liable for all of the violations on their site, and been sued into the dirt. With the poorly written and poorly considering DMCA, their business model now works with little chance of losing in court, providing they are prompt to remove stuff on notification. They can continue to knowingly use material that they suspect is in violation, provided they are not specifically notified.

          Do you honestly believe that Youtube being sued into the ground due to the actions of its *users*, not the company itself, would be a good thing? If so, you're quite out of touch. Youtube has never committed a single crime. Punishing it for the acts of individual people unaffiliated with the site is an abortion of the process of law.

           

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            Anonymous Coward, May 28th, 2009 @ 7:23am

            Re: Re: Re: Re:

            Sorry, but Mike invites the infringement. His blogs posts have value only as promotional tools for the brand of Masnick, guru of all that is free and unrestricted. Using his own system, ever purloined post is marketing for Mike.

            So for Mike, DMCA would be entirely theoretical, because if he actually used it, he would be going against his own stated principals.

            "Do you honestly believe that Youtube being sued into the ground due to the actions of its *users*, not the company itself, would be a good thing?"

            Nope, I didn't say that. What I said is that their business model is entirely predicated on the idea that DMCA gives them a free ride. If they required people posting videos to actually prove rights and ownership to their content, they wouldn't have a business, because a significant amount of what "made" youtube was posted without permission. Yes, youtube does remove stuff on notification, but they still enjoy that wonderful grace period where something is posted, gets noticed by the copyright holder, and then notifies Youtube, who has a certain amount of time to react. So if that process takes 7 days total, it means that Youtube profits from material it has no rights for during that entire period. If a copyright holder misses a single clip, YouTube can enjoy it for as long as they want without fear, because they only have to take action when they receive notice.

            The "230" exemption should require that the hosting company be able to identify the original poster, and provide that information to be able to claim that they are not responsible. Otherwise, it should be assumed that they are the source, not anyone else. The "rogue poster" defence is wearing thin.

             

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          Mike Masnick (profile), May 28th, 2009 @ 11:40am

          Re: Re: Re:

          Yes - it means that the copyright holder must do something to assert their rights, that the assumption is that they have no rights, and they have to prove it.

          This is incorrect. The DMCA (and copyright law) actually gives tremendously beneficial rights to copyright holders automatically. That they have to assert those rights when it is being infringed makes perfect sense. It makes no sense to argue that it's someone else's responsibility to determine whether or not there is infringement.

          Such a system would be impossible. See what's happening in South Korea now.

          If it's your rights that are being infringed upon, then of course it should be your responsibility to make the proper notifications. Why would you want it any other way?

          But that's not a "burden of PROOF." That's a burden of action, which is quite different.

          The assumption made by youtube (and pretty much every web2.0 company) is that the guy submitting is does have the rights to do so. YouTube does not require it's posters to prove those facts.

          Which again is entirely reasonable and was set up that way on purpose.

          They shift that burden to the true copyright holders, who must file documents for each item to show they have not permitted this use.

          That is not a "shift" that's just the nature of a reasonable law involving an individual's rights in the marketplace. You are always expected to assert your rights if they are violated in such a commercial dispute. There is no other area where others are liable for such things.

          DMCA is a free pass system, placing the burden of policing on the copyright holder

          No, that's not true. The DMCA doesn't do any of that. Basic common sense and overall copyright law has ALWAYS put the burden on the copyright holder. Blaming the DMCA shows a total ignorance of the law.

          And, the DMCA is anything but a "free pass." It's the opposite of that. It gives anyone the ability to pull down content WITHOUT any burden of proof. All they have to do is file a notice and it takes down content, even if that content is perfectly legal.

          in the meanwhile youtube profits from the use of the video,music, or whatever in question without the right to do so.

          No, this is wrong. YouTube profits from PROVIDING A SERVICE. They are not profiting from the content itself.

          Copyright holders under DMCA are obliged to contact each site that misused material for each individual misuse, and they gain nothing from the effort, because the way DMCA is structured there is no easy way to sue for infringement.

          WHAT?!? There is no easy way to sue for infringement? That's laughable. It's amazingly easy to sue for infringement. Just ask the RIAA who filed tens of thousands of such lawsuits in the past few years.

          Mike, in all seriousness, because of my business I am very aware of the implications of DMCA on a day to day basis (people I work with). You may have a theoretical opinion, but the reality, where the "rubber meets the road" is that DMCA gives people with no rights an incredible free pass that they have leveraged into various business models.

          Huh? That makes no sense at all. There is no "free pass." Those who are infringing remain liable. What you want is to blame the automaker for the fact that people speed. Thankfully people recognize how incredibly stifling that would be.

          Pre-DMCA legislation, Youtube would have been shut down the first week, because they would have likely been found liable for all of the violations on their site, and been sued into the dirt.

          Again, someone appears to be woefully unfamiliar with the law. The Sony Betamax ruling (which, I'll note, happened over a decade before the DMCA passed) would have protected YouTube. It's not the DMCA that's protecting it.

          You appear to be woefully ignorant of the very basics of liability and copyright law.

          With the poorly written and poorly considering DMCA, their business model now works with little chance of losing in court, providing they are prompt to remove stuff on notification.

          Well, we agree that the DMCA is a bad law, but obviously for different reasons. The DMCA has tremendous problems, but the safe harbors are simply common sense.

          You want to blame YouTube for actions of its users. That's unfair, stupid and self-defeating.

          It is a horrible system that does nobody any favors, except those that profit from the free time.

          Hey I'd be happy to throw out the DMCA. It's one of the worst laws ever. But I'm guessing you don't actually want to get rid of most of it, considering that it immensely favors copyright holders (you do know it was written by the entertainment industry, right?).

           

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            Anonymous Coward, May 28th, 2009 @ 3:05pm

            Re: Re: Re: Re:

            Mike, for the first time, you made a post that both made me wonder about your sanity and made me LOL to the point that I am sure that the guy next door things I am crazy.

            "YouTube profits from PROVIDING A SERVICE. They are not profiting from the content itself."

            OMG. This is the biggest lie of Web2.0. They don't profit from service (hosting), they profit from PRESENTATION of the videos. Is the money made by charging for hosting? Is the money made by charging storage? Nope. The money is made by putting those videos on webpages, and packing them in with ads, and related links to other videos on the youtube system that also appear on pages will advertising.

            As for DMCA, all you have done in this discussion is prove that you have never been on the producing side of content used online (that has any value to protect).

            "This is incorrect. The DMCA (and copyright law) actually gives tremendously beneficial rights to copyright holders automatically. That they have to assert those rights when it is being infringed makes perfect sense. It makes no sense to argue that it's someone else's responsibility to determine whether or not there is infringement."

            You are looking at it backwards. Why should you be allowed to publish something that you don't have copyright or permission to use? This is doubly obvious when the material is clearly copyrighted (say like a TV show or a movie). If I want to publish full episodes of the Family Guy, example, shouldn't the guys who will profit from that publishing (tube site) sort of say "hey wait, did you get permission from Fox to do this?".

            They don't do it because DMCA created a major hole in copyright law. As long as a company (like youtube) honors takedown requests promptly, they have no liability. These companies are aware of the delay it takes between publication and notification, and they are also away that more desirable clips will be published multiple times by multiple users. So they remove the clips that they get DMCAs for, but leave similar material up if no complaint is received. They profit from the time that the clip is up until the time they take it down when they get a DMCA, and they profit from any oversights or missed clips that the copyright holder doesn't specifically list.

            As a copyright holder, you could spend your entire life going from tube site to tube site writing up DMCAs and sending them in, and the material back fills in almost as quickly as you pull it off the other side.

            In the meantime, who profits? The tube site. Amazing how it works, because as long as they follow the DMCA to the letter of the law, they have no liablity.

            "You appear to be woefully ignorant of the very basics of liability and copyright law."

            Sorry, in this area, I am confident, having specific experience in it. Basically, I produce a video, and sell it for $10. One person buys it, and posts it to youtube. As the copyright holder, I must first check youtube (and all other tube sites) on a regular basis looking for violations. I then must send a registered letter to youtube, with the DMCA notification. They then have a set amount of time after reception to comply. They comply. Round trip time to do this, probably 7 days.

            1 hour after the video is taken down, the user again uploads the same video, and the process restarts.

            Video up time per week: 7 days less 1 hour. Downtime? 1 hour. Liability to Youtube: Zero. Who made income? Youtube.

            Remarkable.

            "The DMCA has tremendous problems, but the safe harbors are simply common sense."

            Yes, they make sense, if the entity claiming safe harbor isn't in the content publishing business themselves. Youtube is a file host like you are a newspaper publisher. Neither is a true statement. Youtube plays the innocent host because it is a nice legal place to stand, but the reality is that they are not a host,but a content syndication and presentation system. If they were a filehost, they would not exert any editorial control on the content, they would not format pages, they would not provide any related file information. They would allow people to upload a file, and other to download it period. As soon as that file gets changed in any manner (including encoding) or gets pushed off onto a webpage owned by youtube, they cross the line into the realm of a publisher.

            The only cases in the past going down this road have all been settled long before they made a courtroom, so their is no presidents set. Even the Viacom lawsuit went down that road, but this argument was never settled in a court of law.

            Seriously Mike, this is an area you need to read up on, and learn in practical terms what the implications are. You look at DMCA from it's evil implications, but you don't seem to understand that it also has provided a huge free pass to people who seek to abuse copyright material online.

             

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              Mike Masnick (profile), May 28th, 2009 @ 5:00pm

              Re: Re: Re: Re: Re:

              Ignorance is no excuse. But your level of ignorance on copyright law is quite amusing, given you purport to be knowledgeable on the subject.

              Is the money made by charging for hosting? Is the money made by charging storage? Nope.

              No, because that would be a dumb business model. So they came up with a business model that works. But GOOGLE provides no content. They provide the service. They make their money because of the service the provide.

              You seem to have a mental block disconnecting a service provider and what they provide from the user.

              This seems to be a common issue in your criticisms.


              As for DMCA, all you have done in this discussion is prove that you have never been on the producing side of content used online (that has any value to protect).


              Heh. The content seems valuable enough to have you stopping by every day. And hundreds of thousands of others. How's the traffic on your website? You know... the one where you copy this supposedly worthless content?

              You are looking at it backwards. Why should you be allowed to publish something that you don't have copyright or permission to use?

              You're not allowed to. I never said otherwise.

              This is doubly obvious when the material is clearly copyrighted (say like a TV show or a movie). If I want to publish full episodes of the Family Guy, example, shouldn't the guys who will profit from that publishing (tube site) sort of say "hey wait, did you get permission from Fox to do this?".

              Sure, if they were in the business of choosing which content goes online. But they're not. They're a tool/service provider. I still am confused by your inability to understand the difference.

              People misuse tools and services all the time. The liability is on the user, not the tool provider. This is common sense. Except to you, apparently.

              For example, you repost my content on one of your sites all the time. By your own definition your ISP is breaking the law. After all, they let you post my content, despite the fact that you have no right to do so.

              They don't do it because DMCA created a major hole in copyright law.

              Again, you appear to be totally ignorant of what the law was prior to the DMCA. But thanks for confirming that...

              As a copyright holder, you could spend your entire life going from tube site to tube site writing up DMCAs and sending them in, and the material back fills in almost as quickly as you pull it off the other side.

              While the copyright holders with more than a few braincells left learn to profit from others helping to promote their stuff.

              I'm really confused about what your position on all this is? You would prefer new laws that kill off the internet?

              In the meantime, who profits? The tube site. Amazing how it works, because as long as they follow the DMCA to the letter of the law, they have no liablity.

              But as you were just pointing out, YouTube isn't profiting. They lose money on every stream. So that sorta blows your whole theory right out of the water doesn't it?

              Oops.

              Sorry, in this area, I am confident, having specific experience in it. Basically, I produce a video, and sell it for $10. One person buys it, and posts it to youtube.

              Right. You have a dumb business model and you're suffering for it. Welcome to capitalism.

              Yes, they make sense, if the entity claiming safe harbor isn't in the content publishing business themselves. Youtube is a file host like you are a newspaper publisher. Neither is a true statement. Youtube plays the innocent host because it is a nice legal place to stand, but the reality is that they are not a host,but a content syndication and presentation system. If they were a filehost, they would not exert any editorial control on the content, they would not format pages, they would not provide any related file information. They would allow people to upload a file, and other to download it period. As soon as that file gets changed in any manner (including encoding) or gets pushed off onto a webpage owned by youtube, they cross the line into the realm of a publisher.

              Good luck with that interpretation of the law, because it's unique and the courts to date have said you're 100% wrong. But it must be nice living in a fantasy world.

              The only cases in the past going down this road have all been settled long before they made a courtroom, so their is no presidents set. Even the Viacom lawsuit went down that road, but this argument was never settled in a court of law.

              Uh, displaying your ignorance once again. The Veoh case settled this: the host is a host and not the liable party.

              Thanks for playing!

              Seriously Mike, this is an area you need to read up on, and learn in practical terms what the implications are. You look at DMCA from it's evil implications, but you don't seem to understand that it also has provided a huge free pass to people who seek to abuse copyright material online.

              No, it hasn't. Those who seek to abuse copyright law are still liable. There is no free pass from the DMCA.

              The "free pass" you seem to have a problem with is the one established by the Supreme Court in the Betamax ruling, which predated the DMCA by many years. Ignorance is no excuse for making dumb statements.

               

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    Bettawrekonize, May 27th, 2009 @ 10:03pm

    Another excellent article.

     

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    Anonymous Coward, May 27th, 2009 @ 11:06pm

    My grandparents owned a player piano, made by the Chicago Cable Car Company, and growing up, I often asked my Grandfather why there was no new music available for it.

    Long story short, after his death, I learned that my Grandmother spent a whole week re-building the bellows using her sewing machine, and Grandfather pulled the whole thing apart re-tubing the entire thing.

    There's more to that Piano which I won't share here. But remains downstairs.

     

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    iyogi (profile), May 27th, 2009 @ 11:17pm

    RE:

    I'm not sure what that has to do with the DMCA. Sure, that would be lovely if that were the case. But it's not. So why not learn to deal with it?

     

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    Tor (profile), May 28th, 2009 @ 12:10am

    Purpose of copyright

    A friend of mine contacted some candidates for the European Parliament election and asked them about copyright. Several of the top candidates for the established parties answered that the purpose of copyright is not to create incentives or be for the public good but rather to guarantee the rights of creators to protect their work.

    This seems to me to be the root of the problem today. People need to educate politicians about this and ask critical questions to highlight the contradictions that their views lead to. For example, by their logic we should either have eternal copyright or the time limitation should be viewed as a case of state confiscation of private property.

     

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    cram, May 28th, 2009 @ 12:22am

    "It should be that if you put up something, you are the copyright holder or have permissions to do so, otherwise just don't do it."

    I don't think tech will ever evolve to enforce something like that. Of course, if every single video site disables all users from uploading stuff and every single Web host refuses to allow anyone to host a video on their servers, then what you say may actually happen.

    Or, alternatively, if copyright infringement is punishable by hanging or beheading or stoning to death, we may see a letup. Until then, it's freeloading time!

     

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    Doctor Strange, May 28th, 2009 @ 12:25am

    I'm not sure what that has to do with the DMCA. Sure, that would be lovely if that were the case. But it's not. So why not learn to deal with it?

    Just out of curiosity, what would be your advice to people operating businesses in a neighborhood where the mafia is running a protection racket and the local police can't or won't stop them? Is that just a market force at work?

     

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      Mike Masnick (profile), May 28th, 2009 @ 12:43am

      Re:


      Just out of curiosity, what would be your advice to people operating businesses in a neighborhood where the mafia is running a protection racket and the local police can't or won't stop them? Is that just a market force at work?


      Extortion is fraud and has clear negative consequences for everyone involved. Embracing free infinite goods is a business model issue that need not have any negative consequences. The differences are huge.

       

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        Doctor Strange, May 28th, 2009 @ 1:11am

        Re: Re:

        Extortion is fraud and has clear negative consequences for everyone involved. Embracing free infinite goods is a business model issue that need not have any negative consequences. The differences are huge.

        But there are not clear negative consequences for everyone. For example, there are positive consequences for the mafia, since they get paid. There are also some positive consequences for the paying shopkeepers, because they often do receive a measure of protection from petty criminals, competing criminal organizations who might be even worse, and so on.

        I have no problem if someone chooses to embrace free infinite goods. It does bug me a little bit if they choose not to, and are forced to deal with it anyway - not by market forces, but by rampant unchecked lawbreaking. The legal system in the U.S. is set up in a way that makes it very hard to stop lots of lawbreakers from breaking lots of little laws lots of the time. There is no such thing as a reverse class-action lawsuit.

        I do not consider rampant copyright infringement a market force, any more than I consider the protection-racket mafia a market force. Both are exploiting the impotence of the legal system in a particular area for their own gain.

        Look, if a million artists follow Trent Reznor and Jill Sobule and end up putting the existing record companies out of business, good for them. I applaud that. If the open-source folks get their act together and wipe out Microsoft, tallyho. If Charles Nesson wins and gets all P2P file sharing declared legal fair use, I will be really, really surprised for a little while, but about ten minutes later I'll be downloading the latest version of a nice BitTorrent client.

        Until then, however, I see no problem with copyright holders fighting to get the existing laws enforced on their own behalf, and I find "deal with it" to be a sad response. It may be practical, as it would be practical to tell a Sicilian shopkeeper to "deal with it" and pay the pizzo, but I lament the thought.

         

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          Mike Masnick (profile), May 28th, 2009 @ 2:05am

          Re: Re: Re:

          But there are not clear negative consequences for everyone. For example, there are positive consequences for the mafia, since they get paid. There are also some positive consequences for the paying shopkeepers, because they often do receive a measure of protection from petty criminals, competing criminal organizations who might be even worse, and so on.

          Extortion is the forcing of a scarce resource (money) from one party to another through threats.

          Internet piracy, while illegal, doesn't involve any scarce resources being transferred.

          I have no problem if someone chooses to embrace free infinite goods. It does bug me a little bit if they choose not to, and are forced to deal with it anyway - not by market forces, but by rampant unchecked lawbreaking.

          Fine. They don't have to deal with it... at which point they will fail.

          I do not consider rampant copyright infringement a market force, any more than I consider the protection-racket mafia a market force. Both are exploiting the impotence of the legal system in a particular area for their own gain.

          I disagree. Again it's the difference between scarcities and infinite goods. Protecting property rights around scarcities (such as money) make sense. It doesn't make sense around infinite goods.

           

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            Anonymous Coward, May 28th, 2009 @ 3:45am

            Re: Re: Re: Re:

            Extortion is the forcing of a scarce resource (money) from one party to another through threats.

            Internet piracy, while illegal, doesn't involve any scarce resources being transferred.


            It reduces exclusivity, which is a scarce good. It can result in a lost sale (no, I will not claim that every instance of infringement is a lost sale, but in the absence of data one way or the other it is equally naive to assume that zero sales have been lost). The distinction is thin at best.

            Fine. They don't have to deal with it... at which point they will fail.

            And the same predictions and extrapolations have been made for years by members of the open source software community, and you know what? They have bitten into the marketshare of many large products. They have dominated a few small market segments. They have, slowly, over time, forced big huge companies to adapt their business models. They have even inspired a few dirty tricks, which the Internet community has addressed with ardent fervor (and rightly so).

            For all the doomsaying and for all the inevitability that free software would utterly and irrevocably topple commercial software, it hasn't happened. Not yet, anyway, and it doesn't seem like I need to plan for it happening in the next six months. Or six years, for that matter. It turns out that free works well for some things and works poorly for others, and is not a panacea.

            Software makers have suffered piracy as well, of course, but they are in a slightly different situation, since the traditionally biggest customers (businesses and large organizations) still pay, and still follow the rules. The legal system is not so impotent when it comes to dealing with infringement in large enterprises.

            I disagree. Again it's the difference between scarcities and infinite goods. Protecting property rights around scarcities (such as money) make sense. It doesn't make sense around infinite goods.

            To you, it doesn't make sense. To me, and countless others over the last several hundred years, it probably makes more sense.

            Based on your previous writings, I think you mean more than "personal" sense here - I think you mean that from an economic perspective (as you interpret and extrapolate economic theories) it's unjustifiable or illogical. I'm guessing that you also have a particular utility function in mind as to the end you want to achieve - that is, if you want to achieve (whatever kind of society you think is best), then it doesn't make sense. Fine. If we argued about it, you and I would probably end up with different utility functions, and with different extrapolations and interpretations of the same economic theories. There are too many variables to draw any definitive conclusions anyway, and so we will probably have to agree to disagree.

            For the most part, the way things are currently set up, you are not prohibited from either selling infinite goods nor giving them away. You are free to enjoy protections on those goods that allow you to treat them as scarce, or you are free to take advantage of their infinite nature and exploit the properties that result. My personal opinion is that if we more-or-less continue this practice, we will get what we have in software: an ecosystem with infinite goods both given away and for sale, and an equilibrium between them with tension.

            There is nothing inherently wrong with protecting an old business model, but in doing so, you have to be careful not to preclude other business models that are also fair and play by uniform ground rules. This is not a zero-sum game. Providing additional protections for an established business model does not necessarily mean neutering innovation or killing other business models.

            Should a media company be allowed to force YouTube to take down full-length episodes of their TV show? I think so. Should the same company be allowed to take down a video of a birthday party where said TV show is running incidentally on a TV in the background? Probably not.

            The latter case is exceptional - and egregious - enough that it seems that I get to read about it on Techdirt or (well, actually AND) Digg every single time it happens. This is the system working. The Internet has made it possible to rapidly organize communities to ferret out and heavily scrutinize any potential abuses of the law. Nifty. The next steps - closing the feedback loop and turning this scrutiny into changes in the law - have not been so successful. But the EFF files the occasional Amicus Curiae brief, and there are probably a few policymakers who listen to Lawrence Lessig, so we're seeing nascent bits of that.

            Thinking about it, unchecked infringement seems similar to a bogus or specious DMCA takedown notice. It's exploiting a bug in the system to undermine someone's chosen business model. To this end, I can't call rampant infringement a market force any more than I can call specious takedown notices a market force. It also seems inconsistent to get worked up over every single instance of a specious takedown notice or an overzealous copyright holder, but to blow off infringement as a sort of endemic part of doing business, or spin it as a missed opportunity.

             

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              robin, May 28th, 2009 @ 5:20am

              Re: Re: Re: Re: Re:

              @ a.c. #19: nice post, well thought out. take a look please at this thought.

              "To this end, I can't call rampant infringement a market force any more than I can call specious takedown notices a market force."

              there's a ton of literature available on the subject of the birth, sustenance and ultimate demise of piratical behavior. it almost always arises out of an economic failure to meet a need somewhere.

              so i believe that yes, rampant infringement is a market force, behavior that is attacking a need that is being failed to be met under current economic relationships (vertical and horizontal).

              these lawless companies, communities and individuals will, 20 years from now, be the successors to those currently defending their businesses from the pirates.

               

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              Almost Anonymous, May 28th, 2009 @ 7:36am

              Re: Re: Re: Re: Re:

              Had to chime in on one point here:
              """
              Mike:
              I disagree. Again it's the difference between scarcities and infinite goods. Protecting property rights around scarcities (such as money) make sense. It doesn't make sense around infinite goods.

              Other guy:
              To you, it doesn't make sense. To me, and countless others over the last several hundred years, it probably makes more sense.
              """

              Precisely what infinite good has been around for the last several hundred years? I was under the impression that the "Digital Age" is what made infinite goods possible, which is why we are seeing many companies/business models experiencing such agonizing growing pains.

               

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    Anonymous Coward, May 28th, 2009 @ 3:39am

    Geez, I'm sorry. Should have been more mindful of others feelings. I didn't take into account that someone lost their sense of humor sometime in 2007 when they stopped making "Chaser's War on Everything" available. It was a pretty decent show. But anyways, kindly delete comment 14,16,17 and this comment, which I guess is tentatively scheduled to be number 18. Oh, I'm blushing. I'm such a fool!

     

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    Anonymous Coward, May 28th, 2009 @ 3:45am

    Oh wow, you're comments are even highlighted in blue on the link I gave.

    DAMNIT Sorry, I gotta shutup. Can you delete #19 too?

     

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    Anonymous Coward, May 28th, 2009 @ 3:46am

    Oooh! Dynamic approvals. I likey. Based on IP address?

     

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    KeillRandor (profile), May 28th, 2009 @ 5:13am

    Hmm

    INFORMATION, (in itself), IS NOT, NOR SHOULD EVER BE CONSIDERED, PROPERTY.

    A lot of our problems arrive because people refuse to accept this statement - all because some companies have corrupted their original purpose, (distributing property that contained information), in trying to control the information itself.

    But since the invention of the internet - the worlds greatest ever PURE information COPYING AND DISTRIBUTION system - (i.e. it doesn't require the transfer of scarce physical goods to operate, unlike paper & ink etc.) - their original reason for existing has changed, or is at least changing. Unfortunately they refuse to accept this, and are now trying to control the distribution and use of the information itself, regardless of any actual property it no longer needs, in a manner inconsistent with the way the internet works, and the way humanity wants and/or needs it to work.

    Humanity has always thrived on the free exchange of information, and to try and force it to do anything otherwise is, well, not a good idea - it generally leads to such things as censorship and propaganda etc. - things which have always been tried, but always eventually failed, as humanity usually finds a way round it, or fights against it. (Yes, I know about China, but I don't see them staying that way indefinitely - humanity will/should always outlast any tyranny).

    This isn't to say that information isn't valuable - it's just that, because of the internet, the information, in itself, isn't valuable ENOUGH to make people pay the amount of money a lot of companies think it's worth.

    However, it's possible to add things to the information in order to increase it's value - even such basic things as presentation and organisation, in order to improve access etc. can increase its value to the point that some people think it's worth paying for. And this is without actually linking it with any actual 'property' which, by it's very nature, will be a scarce good that is more valuable...

    But few companies seem to full understand this: because they were so used to dealing with limited, scarce physical property - (from paper and ink to plastic discs) - they're having trouble understanding what it is they're trying to sell now, and how to actually go about doing it.

    And they've made a big mistake - they've done everything they can to try and make the INFORMATION itself, into a scarce good...

    But information isn't, and will never be scarce, certainly now, as long as the internet exists. And so they're trying to do everything they can, from getting laws enacted, to artificially limiting access, to try and force their information into being a scarce good, just like they think it used to be.

    But it never was, and still isn't. Information has never been a scarce good - it's only ever been the format that information took that was scarce - but that's changed, and a lot of companies have yet to understand that.

    And so they FAIL...

     

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    R. Miles (profile), May 28th, 2009 @ 5:40am

    Help with a conundrum, please.

    This article reminds me of a poll I asked long ago, so I need some help as I can not find any definitive answer.

    An artist paints a scenic view on canvas, and I take a photo of it, using my skills to capture the "essence" of the street and the photo together (thus, the photo is not of the painting itself, but is included). The painting, due to the perspective I chose, takes nearly 3/4 of the photo and is clearly visible.

    I decide to sell this photo.

    Is it legal for me to sell this photo?

    I posted this question a few years ago (on a now defunct website) and received results which were nearly split (51% favored the photographer).

    Care to answer or do you think copyright is still a good thing?

    Oh, and the "walking by and hearing a song" did happen recently, which is why YouTube removed a video of a dancing baby due to "copyright" background music.

    There's no way anyone on this planet will convince me copyright is a good thing as it's currently written and the question I posed is the reason.

     

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    Mike Raphone, May 28th, 2009 @ 5:46am

    Misuse of DMCA and copyright laws.

    The DMCA and copyright laws are being used to suppress free speech and freedom of the press. These days anyone can be a reporter. The copyright laws should be changed to allow posting a clip of any copyrighted work for the purpose of criticizing the content of that work. Posting an entire copyrighted work should still be prohibited except where it is necessary, for example, to post an entire news report for the purpose of pointing out the critics opposing view.

    Those posting an clip should be required to credit the source of the clip. If one posts a clip copied from the Pompous News Channel criticizing statements by Sam Sleazy the subject of a news report, then the person posting the comment should be required credit the Pompous News Channel as the source of the clip.

     

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      Anonymous Coward, May 28th, 2009 @ 5:59am

      Re: Misuse of DMCA and copyright laws.

      Mike, you can do that now without issue - but you cannot post the full clip. Notice how it is done in the real world, clips are either segment provided by the movie / music maker, or segements are typically limited to a run of about 30 seconds.

      Not everything is free to use. You can report the content of a video, but you may not have the rights to use the video. it doesn't suppress free speech, you can still talk about it.

      Sorry, but 1st amendment arguments like this are always funny to read, because they are without basis.

       

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    Killer_Tofu (profile), May 28th, 2009 @ 6:01am

    Technology advances

    Copyright needs to go away. It is holding culture back. IP in general needs to die. It is holding the advancement of our race back.
    Got along just fine for thousands of years without it. All it has done so far is muck things up.
    Adapt or die bitches.

     

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    CleverName, May 28th, 2009 @ 6:21am

    Waaaaa

    Looks like another case of Big Media not wanting anyone to ruin their monopoly. They can not allow just anyone to put content out there, whether it is their baby pics or crashing their bike into a wall - it can not be allowed without their permission.

     

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    Ed, May 28th, 2009 @ 6:55am

    Mafia Protection Rackets... SERIOUSLY!!

    I have always thought of myself as a copyright moderate. Copyright was necessary to protect the creator. If one could rewrite law, to fairly balance the creators right to profit from his work, with the consumers right to use what he "PURCHASED", and the necessity for the public domain, this problem would just go away.
    I have always seen piracy as the result of the corporations (not creators) attempts to gouge and control the public. By that I mean things like dvd regions, DRM preventing media player shifting of properly purchased materiel, or "You must put in the CD, to play that game". If I overpaid for the thing, leave me alone. And yes, I pay.
    But, when discussing the inconsequential inclusion of background music, or 10 second shot of a TV screen during a live video cast compared to mafia protection rackets, I begin to listen more closely to those calling for copyright abolishment.
    As I say, I believe in creator compensation, but I also believe in fair use, and common sense.

     

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    Anonymous Coward, May 28th, 2009 @ 8:44pm

    Actually Mike, I discontinued your content as being too biased to run. I originally syndicated it as news, but discovered it wasn't news, so I dropped it. Opinions are cheap, free, and all over. So there isn't a single post from this site since January 1st.

    As for the rest of it, well...

    Veoh? Just looked at their site, the appear to be mostly hot linking videos from you tube now. The one ruling is a single instance, and I didn't see all of the background with it, in front of a single judge with no appeal. So I am not clear that anything can be implied from here.

    For the rest, again, you absolutely, totally, and utterly miss the point. I won't go through the process of trying to explain it again, because you won't understand any time soon. However...

    "The "free pass" you seem to have a problem with is the one established by the Supreme Court in the Betamax ruling, which predated the DMCA by many years. Ignorance is no excuse for making dumb statements."

    No, again, you miss the point. Betamax does allow certain types of delayed viewing (time shifting) and certain backups / copies to be made. Betamax isn't an open door that says "and you can give all your stuff to everyone". The Betamax case was well reasoned in a time when copies of copies were degraded copies, and that widespread sharing wasn't an issue. In a time of perfect digital copies and the ability to share a movie with 10,000 of your closest friends, the ruling likely would have been different.

    The free pass I talk about has nothing to do with end users, it has to do with the "hosting" companies that aren't hosts at all. They are publishers. Youtube doesn't host content, they publish it. They accept submissions and publish those submissions on web pages, add their logos, brand the material as youtube material, sort, collate, and collect stuff by similar types, related subjects, etc.

    Hosts don't do any of that. Hosts provide space period. Youtube isn't a host. They are trying to hide out as a host and enjoy "230" protection, but in the end, they are not a hosting company.

    They profit from displaying videos on their webpages. They source the videos from whoever wants to upload. They accept the videos and run them without checking, and profit from them. If they are copyright and Youtube received a notice, they take the videos down when notified. If that noticed takes a week to get there (or it takes a week for the copyright holder to notice the video being used) then Youtube gets a free pass, free use of the copyrighted material. This is the defect of DMCA, it doesn't have an provision for punishment for use of the violating work. If youtube earned, I dunno, $100 for ad space next to a video in the 7 days it was up, why would that $100 not be claimable by the copyright holder? They can't under DMCA - youtube keeps the money, and the copyright holder gets nothing but the expense of tracking down violations and sending the notices.

    Youtube isn't required to reveal the submitter (although in the end, viacom did get some of that information), and youtube isn't required to return their ill gotten gains.

    That is a free pass, plain and simple. Rather than "publish if you have the right" it is "publish anything until someone tells you to stop". That would be a free pass.

     

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      Mike Masnick (profile), May 28th, 2009 @ 11:26pm

      Re:

      You remain woefully ignorant of the law. Which is kind of sad considering the number of people on this site who have tried to educate you.

      Veoh? Just looked at their site, the appear to be mostly hot linking videos from you tube now. The one ruling is a single instance, and I didn't see all of the background with it, in front of a single judge with no appeal. So I am not clear that anything can be implied from here.

      It remains a precedent setting case that can and has been cited by others. The fact that there was no appeal means nothing, other than the fact that the porn company realized it would lose on appeal as well.

      No, again, you miss the point. Betamax does allow certain types of delayed viewing (time shifting) and certain backups / copies to be made.

      Ha! Someone apparently is unfamiliar with the Betamax ruling. Please read it again. It was not about legalizing time shifting. It was about setting the standard for liability. You keep insulting those of us who try to educate you and then you continue to display your ignorance.

      Let's be quite clear about this, since you seem to not want to learn: the liability standard that protects YouTube was established by the Betamax case. The DMCA had NO impact on it, other than to codify it into law. There was no other change. You are blaming the wrong thing.

      The free pass I talk about has nothing to do with end users, it has to do with the "hosting" companies that aren't hosts at all. They are publishers. Youtube doesn't host content, they publish it.

      This is simply untrue. Publisher assumes an approval process. If YouTube is a publisher so is your webhosting company based on what content you put on your website. By your reasoning, your hosting company is liable for all of the infringing materials you post.

      Hosts don't do any of that. Hosts provide space period. Youtube isn't a host. They are trying to hide out as a host and enjoy "230" protection, but in the end, they are not a hosting company.

      The law, which apparently you have not read, does not say "host" it says "service provider." That is for a very good reason: to distinguish a service provider from a user. This is just common sense. You don't put liability on the tools provider.

      They profit from displaying videos on their webpages. They source the videos from whoever wants to upload.

      Right, and the liability is on whoever wants to upload.

      They accept the videos and run them without checking, and profit from them

      No, they profit from providing the service.

      If that noticed takes a week to get there (or it takes a week for the copyright holder to notice the video being used) then Youtube gets a free pass, free use of the copyrighted material.

      No, it's the USER, not the service provider who got the free pass.

      So let's say that a copyright holder discovers your webpage and believes your scraped content infringes on their copyright. They send your hosting company a takedown. It takes a few days to get there. Yet, during that time, you continued to pay your hosting bill. Did your hosting company get a free ride? Of course not, they were providing you a service and the got paid for it. The liability is on you.

      Same thing with YouTube.

      This is the defect of DMCA, it doesn't have an provision for punishment for use of the violating work

      Ha! This is untrue. The penalties for violating the DMCA are quite clear. Your ignorance on this subject is really quite astounding.

      Youtube isn't required to reveal the submitter (although in the end, viacom did get some of that information), and youtube isn't required to return their ill gotten gains.

      Youtubes "gains" are not illgotten. They are still providing the service and they make their money from that -- not from the content. Also, they absolutely are required to reveal the users information should a copyright infringement lawsuit be filed. Your ability to get basic facts wrong continues to astound.

      That is a free pass, plain and simple. Rather than "publish if you have the right" it is "publish anything until someone tells you to stop". That would be a free pass.

      Someone is very very confused. It's sad, really.

       

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    Anonymous Coward, May 29th, 2009 @ 5:15am

    Mike, one day you will actually produce something that you want to protect, and you will find out how DMCA works in the real world. Until then you are attempting to tell someone with experience in the field how the field works. You can fib all you want to your users, but practical experience is different from theoretical classroom work.

    The term "service provider" was aimed at ISPs and such that provide only the connectivity for a user. It has been stretched by companies like YouTube to include their product. But realistically, youtube does filter and does control the content on their site, which means they aren't a transpartent service provider.

    After all, if you want to be technical about it, floor64 is a service provider that could claim to fall under "230" laws. Your blog here is a service as well. There is no difference between what youtube does with submitted content than what your software here does with your blog posts. So you could post up copyrighted material all day, and the only thing that could be done would be to DMCA and get it removed without liability, provided it falls under "service provider".

    "Someone is very very confused. It's sad, really."

    Not really. It's the difference between "in the real world" and "in theory in the classroom". It's sort of why I tend to razz many of your posts, because much of what you talk about is theoretical. Without true examples of what works, you are talking only in theory. Reality is different.

     

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      Mike Masnick (profile), May 29th, 2009 @ 10:10am

      Re:

      Mike, one day you will actually produce something that you want to protect, and you will find out how DMCA works in the real world.

      I'm in the real world and I'm making money, because I know the important thing is to create value and not focus on *protecting* it, but figuring out ways to spread it that fits within a business model.

      The fact that you happened to have chosen a really bad business model is sad, but don't pin your problems on me for getting it right.

      To claim that what we discuss is not in the real world is so laughable it makes me wonder what site you're reading. We show examples of it working in the real world pretty much every day -- and we're living proof ourselves.

      But, I guess some people just have a mental block.

       

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