Viacom Plays The Insane Hyperbole Card In Claiming YouTube Ruling Would 'Completely Destroy' Content Value

from the get-real dept

It should be no surprise, of course, that Viacom has now officially appealed its rather complete loss at the district court level concerning YouTube's liability for users' posting infringing works. What is a little surprising is the level of insane hyperbole Viacom chooses to use in its filing (included in its entirety after the jump) -- where it claims that if the ruling is allowed to stand it, would "completely destroy" the value of content:
If affirmed by this Court, that construction of Section 512(c) would radically transform the functioning of the copyright system and severely impair, if not completely destroy, the value of many copyrighted creations. It would immunize from copyright infringement liability even avowedly piratical Internet businesses.
To put it mildly, this is hogwash. First of all, it's exactly how the system has functioned since the DMCA came into being in 1998. If you see infringing content on a site, you issue a takedown and the site takes it down in order to keep its safe harbors. The idea that it would "completely destroy" the value of content makes no sense at all. First, you have to understand why it makes no sense that YouTube should be liable: it has absolutely no way of knowing, for certain, whether or not specific content is infringing. As it showed in the case, even Viacom itself had trouble figuring out what was infringing, and had sued YouTube over a bunch of videos that it had put on YouTube itself. How do you make YouTube responsible for determining such things when even the copyright holder can't figure it out? It makes no sense.

Second, the idea that the value of the work is "destroyed" again makes no sense. After all, the value of any particular content is intrinsic to the content and how any individual feels about it. The value of a piece of content doesn't change if someone puts it up on YouTube. Furthermore, YouTube quickly does remove content when it receives a takedown notice, so if Viacom is that concerned, it can send the takedowns. In fact, that's exactly what it did and the company complied. That's exactly what the law says it should do. On top of that, nothing in the DMCA's safe harbors immunizes those who actually upload the content, who are still very much liable for their own actions.

But the biggest evidence that Viacom's claims are complete and total hogwash is the simple fact that even after the ruling, there has been no "mass destruction" in value of content. As we've pointed out for years, the overall revenue for the entertainment industry continues to go up all this time -- though, perhaps less of it goes to the gatekeepers like Viacom. But those are normal market changes, not anything nefarious. Who knows how the appeals court will rule in the case, but Viacom seems to be going off the deep end with hyperbole in making its own case. They must be hoping that the judges don't do much thinking for themselves.


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    PRMan, Dec 3rd, 2010 @ 6:46pm

    Insane hyperbole?

    I think "Boston Strangler" was worse. This is pretty tame for them...

     

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    TtfnJohn (profile), Dec 3rd, 2010 @ 7:25pm

    What in the world???

    Why is it that every time I read about things like this I'm reminded of the story of the boy running around screaming that "the sky is falling! the sky is falling!".

    It isn't. Get over it.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 7:44pm

    They've got it completely backwards in the devaluing department. Obviously people VALUE the content or there would be no demand for sharing it at all in any way. It would die with a quiet thud in a corner somewhere.

    They just can't figure out how to monetize it in concrete ways now that distribution is now beyond their control. Nor do they know how to compete, having had a gov't granted monopoly.

    They make it seem like having copyrights makes ya stupid, lazy and mean.

     

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      Hephaestus (profile), Dec 4th, 2010 @ 6:48am

      Re:

      "They make it seem like having copyrights makes ya stupid, lazy and mean."

      Any monopoly does this. If you look at the energy sector, ISP's in the US, Big Content, etc they are monolithic bureaucracies with their own languages. The head of these corporations tend to lack creativity and expect things to always remain the same. When a disruptive technology comes along they tend to deny it exists, ignore it until it affects the bottom line, then over react in a negative way. Their entire self worth comes from how far they have risen in these organizations. When the organization is threatened they see it as an attack on them personally. It makes them irrational and just make stupid mistakes. Hence them seeming mean and stupid.

       

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        Anonymous Coward, Dec 4th, 2010 @ 7:56am

        Re: Re:

        Right in one.

        It just defies imagination that there is not one amongst them that can see past all that, no one that has vision beyond right now. It's not like things never change, ever.

        I suppose those people are branded as boat-rockers who, even if they leave such a stagnating place, can get no traction elsewhere or on their own when incumbents can merely use existing or purchase more legistlation to kill any bright spark of real competition.

         

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          Josh in CharlotteNC (profile), Dec 6th, 2010 @ 7:13am

          Re: Re: Re:

          "It just defies imagination that there is not one amongst them that can see past all that, no one that has vision beyond right now. It's not like things never change, ever."

          All the guys with vision are the ones running the companies that are destroying the old monopolies.

           

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      petegrif (profile), Dec 4th, 2010 @ 10:07am

      Re:

      "They just can't figure out how to monetize it in concrete ways now that distribution is now beyond their control."

      This is absolutely correct. The problem is that this is a VERY hard problem. It is easy to blog about what a bunch of greedy dummies they all are, but it is genuinely difficult to figure out a new business model that works when the content/your product can be freely copied. It just is tough. Perhaps you have a clear idea about how best to proceed that some very smart people have failed to figure out yet. If you have, there's a very highly paid job just waiting for you.

       

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        Anonymous Coward, Dec 4th, 2010 @ 11:34am

        Re: Re:

        It doesn't matter if we can figure that out, it doesn't change the nature of copyright law: If you can no longer sell your content effectively because of a changing society....too fucking bad!

        Copyright holders are entitled to a monopoly on selling their work. They aren't entitled to actual sales.

         

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        Anonymous Coward, Dec 4th, 2010 @ 2:23pm

        Re: Re:

        Nah. Not going there. I said 'concrete ways', stuff that shows up on spreadsheets, which is all they'll see by choice.

        And your comment implies that I want them to succeed. They've had over a decade to work out this whole 'digital' thing and have chosen to cry to the government, abuse existing law to kill or hamstring innovation, progress and competition, outright lie and sue INSTEAD of focusing on the future.

        If these shitheads can't think beyond collecting rents, they deserve to fall by the wayside. They've got no one to blame but themselves.

        The bigger problem is they want everyone to tank along with them in their vortex of failure and with the aid of pointless government intervention, obtuse outdated law, and virulent litigation. Sickeningly wasteful.

         

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        Anon, Dec 5th, 2010 @ 6:20am

        Re: Re:

        There is no business model that can thrive on selling something that people rip off with impunity.

        Freetards are confusing victory for piracy (via technology), with temporary victory for piracy due to lack of enforcement.

        Anybody can get away with anything if nobody ever bothers to bust you.

        YouTube still isn't profitable. Google aquired it because their ultimate goal is to be in the content business. Own the content business. They are happy to facilitate the devaluation of the movie, music and book industries to zero so they can buy it on the cheap and then control access and payment for it.

         

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          Anonymous Coward, Dec 5th, 2010 @ 2:46pm

          Re: Re: Re:

          It's ten years into the 21st century and 15 years after the internet went public.

          The world is still making an undeniable amount of content everyday even though piracy is still rampant.

          It's not Google devaluing content. It's everyday people, mate.

           

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          Anonymous Coward, Dec 5th, 2010 @ 6:32pm

          Re: Re: Re:

          "There is no business model that can thrive on selling something that people rip off with impunity."

          Jamendo, Magnatune are happy with that model.

          "Anybody can get away with anything if nobody ever bothers to bust you."

          Well for a long time now 40 years by some accounts people have been getting away with that, care to enlighten us how things will change in the future?

          "YouTube still isn't profitable. Google aquired it because their ultimate goal is to be in the content business. Own the content business. They are happy to facilitate the devaluation of the movie, music and book industries to zero so they can buy it on the cheap and then control access and payment for it."

          According to Google YouTube turned a profit recently.
          What is wrong with Google being your boss? You prefer EMI, Warner Bros, Universal, Fox as your boss?

          BTW Google still is trying to work with your old bosses, but Microsoft is not, they are truly buying and making their own content and are financing small projects for now with a couple of hits(Red vs. Blue and The Guild), so your boss may not be Google but Microsoft in the no so distant future.

          What happens when the people who know how to make money on the internet are the only ones hiring?

          I don't know the answers to that, what I do know is that I don't need to pirate anything, I have great music on Jamendo, I can get webseries and news on YouTube all legal so what do you offer that it is better?

          You expect me to buy anything from you after calling me a freetard, thief, freeloader and other names?

          LoL
          Just keep waiting there pal.

           

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            Anonymous, Dec 6th, 2010 @ 4:47am

            Re: Re: Re: Re:

            I don't work for the major labels or the RIAA.

            Freetards seem to think all they have to do is accuse someone of that, and it excuses piracy.

            They've run out of rationalizations.

             

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              Richard (profile), Dec 6th, 2010 @ 7:57am

              Re: Re: Re: Re: Re:

              I don't work for the major labels or the RIAA.

              Freetards seem to think all they have to do is accuse someone of that, and it excuses piracy.

              They've run out of rationalizations.


              There you go again - using an insult to cover for your lack of rational arguments. When our side uses words like "shill" the words have a meaning (implying that you have a financial interest in one side of the argument). Your word on the other hand is - apart from anything else - politically incorrect as it uses the disabled as a term of abuse - as bad as using "nigger". Beyond that it is simply abuse.

              What you forget is that most of the people you argue against don't pirate - although we may believe that piracy can't be stopped by reasonable means. By attacking us you are simply shooting the messenger - always a popular tactic with the deluded.

               

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          Richard (profile), Dec 6th, 2010 @ 1:16am

          Re: Re: Re:

          Freetards are confusing victory for piracy (via technology), with temporary victory for piracy due to lack of enforcement.

          Firstly - if you use that word you lose all respect from me - it shows you have a certain mindset and are likely to be impervious to logical reasoning.

          However you seem to be unaware of the technical impossibility of enforcement in spite of the fact that you have been trying to enforce the law that you bought for 40 years.

          Short of outlawing the technology altogether there is no way of enforcing the law against the masses. (It was a different matter when the technology of copying was so expensive that only a few could afford it.)

          At best you might succeed in making piracy invisible - which might make you feel better - but won't do anything for your bottom line.

           

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    Pixelation, Dec 3rd, 2010 @ 9:18pm

    "if not completely destroy, the value of many copyrighted creations."

    To paraphrase..."We're all gonna die."

     

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    Anonymous Coward, Dec 3rd, 2010 @ 9:57pm

    They are afraid of Google TV.

     

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    petegrif (profile), Dec 3rd, 2010 @ 10:34pm

    I agree that their pleading is ridiculous hyperbole. But I don't agree with one element of your argument.

    "Second, the idea that the value of the work is "destroyed" again makes no sense. After all, the value of any particular content is intrinsic to the content and how any individual feels about it. The value of a piece of content doesn't change if someone puts it up on YouTube."

    The idea that value is "intrinsic" to an object is an old and long discredited theory of value. Modern economics considers value to be determined by the market. So the question is, does the work being on youtube alter market value? I think it is quite credible that the market value of work is damaged by work being freely available. There have been arguments to the effect that the value is enhanced by the 'promotion' of the work. But record companies find that a hard argument to swallow and having seen the damage wreaked on them it is understandable that movie companies are sceptical. At the end of the day however it is an empirical question. For the record industry, the answer is pretty plain. As you point out, it is not yet quite as clear for the movie business. But at the end of the day, as far as a computer is concerned, the only difference between a song and a movie is bandwidth and storage.

     

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      Modplan (profile), Dec 4th, 2010 @ 12:08am

      Re:

      Modern economics considers value to be determined by the market


      None of which goes against anything that has been said here.

      I think it is quite credible that the market value of work is damaged by work being freely available.

      [...]

      But record companies find that a hard argument to swallow and having seen the damage wreaked on them it is understandable that movie companies are sceptical.


      This makes no sense. A work being freely available is *more* valuable to people who demand it. This may mean trouble for business that depends on being the sole decider of who gets to access what and when, but this is a business model issue, and has nothing to do with any drop in value of the work.

       

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        petegrif (profile), Dec 4th, 2010 @ 10:00am

        Re: Re:

        It does actually go directly against what has "been said here." Because what has been "said here" by Mike above is that the value is intrinsic and hence that value cannot be diluted by the act of putting the content on youtube.

        "A work being freely available is *more* valuable to people who demand it"
        You are confusing the use of the ideas of "value" and "valuable."
        If you make something free and freely available you may well make it extremely convenient and hence in that sense valuable for the consumer but you have also thereby destroyed its economic value for the content creator. And Mike was arguing that you don't destroy its value.

        All this comes down to confusing different meanings of "value'
        Viacom, crazy and hyperbolic though they may well be, are not talking about "value"' as some intrinsic quality, they are talking about "economic value" and it is this economic value they are claiming is being destroyed.

         

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          Modplan (profile), Dec 4th, 2010 @ 8:47pm

          Re: Re: Re:

          Mike above is that the value is intrinsic and hence that value cannot be diluted by the act of putting the content on youtube.


          Erm, no it doesn't. Content is not devalued by being put up on Youtube, it is made more valuable as the people who demand it can now actually access it and can do so what they want. Youtube adds value of convenience. Value - as Mike said - is in the eye of holder, the market. You're defining value from the producers view - that idea that free access, when the lack of free access limits the usage of and therefore the value of the work. Economic value comes from that actual usage, free access enables that.

          If you make something free and freely available you may well make it extremely convenient and hence in that sense valuable for the consumer but you have also thereby destroyed its economic value for the content creator. And Mike was arguing that you don't destroy its value.


          And none of this makes any economic sense. Economic value comes from the ability to actually gain access and use something. It's actually your definition that confuses value as entirely about access, and not about its use and its affect on the audience. Access is only one small part, something whos limitation can in fact actively lowers the value of other parts. Information and its usage is only as valuable as its use. You're actually arguing the point you claim to be against - that content inherently has value, and thus providing access to it destroys value, which makes no sense.

          Viacom, crazy and hyperbolic though they may well be, are not talking about "value"' as some intrinsic quality, they are talking about "economic value" and it is this economic value they are claiming is being destroyed.


          No, it's the former they're talking about, more importantly, how much they think they should be paid based on their ability to control access, and demanding laws to help them do that. They haven't defined value by the market at all, their rhetoric is based on the idea that they and only they get to set prices (a privilege commonly enjoyed when there is a monopoly in play to the detriment of the market).

          http://levine.sscnet.ucla.edu/general/intellectual/coffee.htm

           

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            petegrif (profile), Dec 4th, 2010 @ 8:57pm

            Re: Re: Re: Re:

            as anyone with any economic training whatsoever beyond high school who is on this board will quickly tell you, what you are saying may seem conmmonsensical to you, but it is nothing more than a failed theory. Look it up.

             

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              Modplan (profile), Dec 4th, 2010 @ 9:11pm

              Re: Re: Re: Re: Re:

              Yet you are unable to provide any reason or logic yourself for why I am wrong, and ignoring I myself cited an economist. It is ridiculous to assert that free access to a work destroys its value. The only thing it does it decrease the value of gatekeepers whose business depends on being the one to provide access, but this is entirely different than value of the work itself being decreased.

              You are confusing the value of a company and its business model with the value of the end work in itself. You consequently ignore how value resides in the ability for a work to be widely used and seen which must consequently come from greater access. Access is only one part of the value in any work, one that actively limits others when it is restricted.

              Supporters of intellectual property, and of copyright extension in particular, seem to be blind to such distinction. Landes and Posner, who provide the least incoherent exposition of why retroactive extension of copyright might be a good thing, acknowledge that the "assessment of welfare effects of congestion requires distinguishing technological from mere pecuniary externalities." They then go on to say, concerning the Mickey Mouse character, "If because copyright had expired anyone were free to incorporate the Mickey Mouse character in a book, movie, song, etc., the value of the character might plummet." The value for whom? It cannot be the social value of the Mickey Mouse character that plummets - this increases when more people have access. Rather it is the market price of copies of the Mickey Mouse character that plummets. As Landes and Posner admit, "If this came about only...as the ordinary consequence of an increase in output, aggregate value would actually increase." They then assert "however, the public might rapidly tire of Mickey Mouse." But this is in fact the ordinary consequence of an increase in output. If I eat a large meal, I am less hungry - the value to me of a meal is diminished, and restaurants will find I am not willing to pay them much money. No externality is involved: as more of a good is consumed, the more tired people become of it. For there to be an externality, it would have to be the case that my consumption of Mickey Mouse made you more tired of it - an improbability, to say the least.

              Although Landes and Posner make the distinction between pecuniary and technological externality, they do not appear to understand it. They quote from a book on Disney marketing: "To avoid overkill, Disney manages its character portfolio with care. It has hundreds of characters on its books, many of them just waiting to be called out of retirement...Disney practices good husbandry of its characters and extends the life of its brands by not overexposing them...They avoid debasing the currency." This is of course exactly how we would expect a monopolist to behave. If Disney were to be given a monopoly on food, we can be sure they would practice "good husbandry" of food, most likely leaving us all on the edge of starvation. This would be good for Disney, since we would all be willing to pay a high price for food. But the losses to the rest of us would far outweigh the gain to Disney. It is a relief to know that, after all, Mickey Mouse is not such an essential ingredient of the American diet.


              http://levine.sscnet.ucla.edu/general/intellectual/lp.htm

               

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                petegrif (profile), Dec 5th, 2010 @ 4:14am

                Re: Re: Re: Re: Re: Re:

                "Yet you are unable to provide any reason or logic yourself for why I am wrong, and ignoring I myself cited an economist."

                I am sorry. I didn't see a citation of an economist. Could you repeat the citation? I would very much like to see any bona fida economist supporting the theory of value you are espousing.

                 

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          Mike Masnick (profile), Dec 6th, 2010 @ 1:59am

          Re: Re: Re:


          Viacom, crazy and hyperbolic though they may well be, are not talking about "value"' as some intrinsic quality, they are talking about "economic value" and it is this economic value they are claiming is being destroyed.


          And they are wrong. Simple as that.

          There is no value being destroyed.

           

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        petegrif (profile), Dec 4th, 2010 @ 10:04am

        Re: Re:

        " This may mean trouble for business that depends on being the sole decider of who gets to access what and when, "

        again, this is a confusion about value.
        businesses are not the sole decider.
        Even in cases where they are a monopoly supplier consumers in most cases do not have to purchase the good. It is their willingness to do and and the price they are prepared to pay that determines economic value not some innate quality.

        Bear in mind that the intrinsic value that people are talking about here may very well be very different for each consumer of the good, that we can't know what that value is in anyone's mind and we can't aggregate a set of such different individual values.

         

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      Richard (profile), Dec 6th, 2010 @ 1:25am

      Re:

      The idea that value is "intrinsic" to an object is an old and long discredited theory of value. Modern economics considers value to be determined by the market. So the question is, does the work being on youtube alter market value? I think it is quite credible that the market value of work is damaged by work being freely available.

      You confuse value with price.

      Oscar Wilde said "the cynic knows the price of everything and the value of nothing". Clearly - for this quote ro work the two terms must have different meanings.

      If something is freely available it may reduce the price you can charge (not necessarily to zero - people may well be prepared to pay for a convenient form of access) but it has no effect on the value.

      If you don't know how to make money selling something that is freely available I suggest you examine the history of the bottled water industry.

       

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      Karl (profile), Dec 7th, 2010 @ 11:42am

      Re:

      For the record industry, the answer is pretty plain.

      Hardly. Anyone who knows the history of the record industry knows that they dug their own grave. You could wipe out all piracy tomorrow, and they wouldn't make a penny more than they are now.

       

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    Anonymous Coward, Dec 4th, 2010 @ 4:03am

    > Second, the idea that the value of the work is "destroyed" again makes no sense. After all, the value of any particular content is intrinsic to the content and how any individual feels about it. The value of a piece of content doesn't change if someone puts it up on YouTube.

    I can see a way in which the value of a work can be changed (decreased or increased) by it being put on YouTube. If the value depends on how an individual feel about the content, if you change that feeling, you can change the value of the work.

    For instance, if you manage to post a corrupted version of the work, such that people do not notice it is a corrupted version but instead blame the original, you could reduce the work's value.

    Imagining other ways of decreasing and increasing a work's value can be left as an exercise to the reader.

     

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      The eejit (profile), Dec 4th, 2010 @ 4:18am

      Re:

      Nature does that all the time. Why can't people decide?

      OH right, that's because they're "sheeple".

       

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      petegrif (profile), Dec 4th, 2010 @ 9:55am

      Re:

      The problem here stems using an intuitive notion of 'value' which attributes value to some intrinsic quality of the object, in an economic context. This way of analyzing value, whilst popular in early classical economics, is long discredited and it can quickly and easily lead, as it does above, to mistaken analysis of the impact of changes in market conditions on value. If you believe that value is something intrinsic then you are likely to believe, as Mike does above, that this value has an enduring worth. So putting it on youtube doesn't change is value. But this kind of analysis is obviously false because if you turn a private good into a free public good you have changed its value profoundly.

       

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    average_joe (profile), Dec 4th, 2010 @ 8:23am

    Probably no surprise that I'm pro-Viacom on this one. There's more to the DMCA than just taking down content once a notice is received.

    From the brief:

    Section 512(c) excludes a provider of storage services from the safe harbor if it obtains either "actual knowledge that the material or an activity using the material on the system or network is infringing" or "in the absence of such actual knowledge . . . aware[ness] of facts or circumstances from which infringing activity is apparent" and then, in either case, fails to "act[] expeditiously to remove, or disable access to, the material." 17 U.S.C. § 512(c)(1)(A). Under this provision, a service provider that has no knowledge of infringing activity is shielded from liability, but "if the service provider becomes aware of a 'red flag' from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.'" H.R. Rep. No. 105-551(II), at 53.

    Congress also incorporated established principles of vicarious infringement liability into the safe harbor, excluding from its protection any service provider that "receive[s] a financial benefit directly attributable to the infringing activity" if the provider had "the right and ability to control such activity." 17 U.S.C. § 512(c) 1)(B). Under this provision, if "the value of the service lies in providing access to infringing material," the DMCA excludes the provider from the safe harbor. H.R. Rep. No. 105-551(II), at 54.


    Ouch. How the district court could apply the law and NOT find that YouTube lost their safe harbor is beyond me.

    From the brief:

    In ruling on the parties' cross motions for summary judgment, the district court acknowledged that "a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material," and that the infringing material "was attractive to users," and "enhanced defendants' income from advertisements." SPA9. It nevertheless granted YouTube's motion, concluding that the safe harbor entitled YouTube to protection "against all of plaintiffs' claims for direct and secondary copyright infringement." SPA33.

    I think that's what they call "reversible error."

     

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      abc gum, Dec 4th, 2010 @ 8:44am

      Re:

      aj -> "no surprise that I'm pro-Viacom"

      Agreed.

      Is this the same Viacom that posted Viacom copyright material upon YouTube servers and later used that as evidence to support their claim againt Google?

      How can anyone support such activities?

       

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        average_joe (profile), Dec 4th, 2010 @ 9:01am

        Re: Re:

        Is this the same Viacom that posted Viacom copyright material upon YouTube servers and later used that as evidence to support their claim againt Google?

        How can anyone support such activities?


        That little fact doesn't mean YouTube doesn't lose their safe harbor for a host of reasons explained in the brief. It's a red herring.

         

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          The Devil's Coachman (profile), Dec 4th, 2010 @ 9:40am

          Re: Re: Re:

          And I'll bet sugar daddy Sumner gave you a nice shiny new quarter to spew your shill-drivel here! Red herrings? Pot - meet kettle. Have a nice day, you shilly little man.

           

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            petegrif (profile), Dec 4th, 2010 @ 10:10am

            Re: Re: Re: Re:

            silly and rude.
            He is trying to make a serious point. Why don't you address it rather than just mindlessly flaming him?

             

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              Anonymous, Dec 5th, 2010 @ 6:32am

              Re: Re: Re: Re: Re:

              Because the freetards don't want to lose their gravy train.

              They then might have to actually spend money on what they consume so much of.

               

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            average_joe (profile), Dec 4th, 2010 @ 12:18pm

            Re: Re: Re: Re:

            And I'll bet sugar daddy Sumner gave you a nice shiny new quarter to spew your shill-drivel here! Red herrings? Pot - meet kettle. Have a nice day, you shilly little man.

            Who is this Sumner guy and how do I get him to pay me for posting on here? I guess I'm being silly and doing it for free. I guess I need to be monetizing it. :)

             

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          sum guy, Dec 4th, 2010 @ 11:04am

          Re: Re: Re:

          "That little fact doesn't mean YouTube doesn't lose their safe harbor for a host of reasons explained in the brief. It's a red herring."

          I don't think that that is a "little fact", or a red herring. it is hugely damaging to their case.

          having read through the entire brief (whoo, now i'm tired!) i think that viacom makes a number of very good points. i am immediately suspicious of that because i know that viacom has misrepresented emails and selectively quoted case history before, but from just reading their side of the story, i might be willing to send it back to district court. what i'm trying to say i guess is that it is very well written and on the face very persuasive.

          now, here's why it is a bunch of bull crap. irregardless of "vicarious liability" or the semantics of "actual knowledge vs. apparent and convincing knowledge", the entire purpose of copyright, as laid out by the constitution, is to benefit society as a whole. can anyone claim that youtube, (however it got to where it is today), has not done that? This is one case, i think, in which the ends justify the means, or rather, there is nothing wrong with what youtube did, there is something wrong with the law that says youtube shouldn't have been doing it.

          the DMCA was created as a compromise between the content producers who wanted no restrictions on "their intellectual property" and service providers who didn't want to get sued out of existence for things they had little or no control over. since it's passage content producers have done everything in their power to chip away at these "safe harbors" with little regard or concern for the ultimate good of society or the right of people to fairly use and draw from a common culture (unless that culture is 70 years plus the life of the author old, AND nobody *cough* disney *cough* has come along and "reinterpreted" it thereby disqualifying anyone else from mentioning it.)

          In summary, all of this has led me to the conclusion that the only viable solution to this "hegemony of the corporation" over our public and shared culture is to burn it all to the ground and start over.

          ahoy mateys! I'll see you on the other side. http://thepiratebay.org/

           

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          abc gum, Dec 4th, 2010 @ 3:06pm

          Re: Re: Re:

          As expected, the question remains unanswered.

          How can one support this sort of activity?

           

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            average_joe (profile), Dec 4th, 2010 @ 3:31pm

            Re: Re: Re: Re:

            As expected, the question remains unanswered.

            How can one support this sort of activity?


            Are you asking how I support Viacom making a mistake like that? I don't. In my mind, that's got nothing to do with Viacom's liability.

             

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              average_joe (profile), Dec 4th, 2010 @ 4:35pm

              Re: Re: Re: Re: Re:

              Should say... "that's got nothing to do with YouTube's liability."

               

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              abc gum, Dec 4th, 2010 @ 11:05pm

              Re: Re: Re: Re: Re:

              Mistake - is that what they are calling it these days?

               

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                average_joe (profile), Dec 5th, 2010 @ 6:33am

                Re: Re: Re: Re: Re: Re:

                Mistake - is that what they are calling it these days?

                I don't know what they're calling it. That's my word. I don't think they did it on purpose, so I'm going with "mistake."

                 

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                  abc gum, Dec 5th, 2010 @ 8:17am

                  Re: Re: Re: Re: Re: Re: Re:

                  "don't think they did it on purpose"

                  Oh please. IIRC, Viacom employees posted Viacom copyright material upon YouTube servers. How is this done by mistake?

                  Possibly the mistake to which you refer was made by the Viacom legal team in using those items in their case against Google. This might make more sense, however once done it is suprising that the court allowed them to remove the "evidence". I think this could be grounds for tossing the case - unclean hands or something.

                   

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                    average_joe (profile), Dec 5th, 2010 @ 8:52am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Possibly the mistake to which you refer was made by the Viacom legal team in using those items in their case against Google. This might make more sense, however once done it is suprising that the court allowed them to remove the "evidence". I think this could be grounds for tossing the case - unclean hands or something.

                    That is what I meant. I don't think the issue is YouTube's knowledge of specific infringements that's at issue. The issue is that YouTube knew their site was chock full of infringements, and they did nothing but profit off of it.

                     

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                      Anonymous Coward, Dec 5th, 2010 @ 5:40pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Can you point to just one instance where YouTube broke the law please?

                      You say it is full of infringement but strangely enough I don't see illegal content making the front page on YouTube do you? please point me to it I would love to see it?

                      Can you provide material proof of what you are saying, that would help dispel any doubts on the minds of people.

                      What I do see a lot of the time is "This content is blocked in your region" or "This content was removed" or "This user account has been disabled".

                      The law only requires that the service provider try enough to be reasonable the law doesn't say "you must get rid of everything and never let that happen" and there is a reason for that, they are not the justice department they are not competent to judge what is and what is not infringement and they also don't have the data from copyright owners to aide on that respect, will copyright owners make a single database pointing out what they upload or not, identifying every distributor that they have dealings and what those people are doing?

                       

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                      Anonymous Coward, Dec 5th, 2010 @ 5:56pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Are you saying YouTube doesn't comply with the DMCA?

                      Because the law only says you need to be diligent to remove content that you are "aware" meaning you know where it is and can do something about not the "aware" that criminals roam the streets but you don't know where they are or who they are.

                      I believe all judgments where very clear on that part but you seem willing to chance that for your own purposes don't you?

                       

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          Mike Masnick (profile), Dec 4th, 2010 @ 3:29pm

          Re: Re: Re:

          That little fact doesn't mean YouTube doesn't lose their safe harbor for a host of reasons explained in the brief. It's a red herring.

          By that reasoning, there is no safe harbor. If I want to destroy any company's safe harbor, I just upload content to their site, and boom, it's gone.

          That, obviously, makes no sense at all. Your interpretation means there's no such thing as a safe harbor, and clearly Congress put a safe harbor in for a reason.

          The problem, I think is that those who wrote the law put in two contradictory parts: the safe harbor and the "red flags" part. It's tough to see how those two points could ever agree in reality. The courts have held that safe harbors trump red flags for years, and changing that removes all safe harbors, which would lead to a really bad result (third party liability on parties who have no way to get away from it).

           

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            average_joe (profile), Dec 4th, 2010 @ 4:48pm

            Re: Re: Re: Re:


            By that reasoning, there is no safe harbor. If I want to destroy any company's safe harbor, I just upload content to their site, and boom, it's gone.

            That, obviously, makes no sense at all. Your interpretation means there's no such thing as a safe harbor, and clearly Congress put a safe harbor in for a reason.

            The problem, I think is that those who wrote the law put in two contradictory parts: the safe harbor and the "red flags" part. It's tough to see how those two points could ever agree in reality. The courts have held that safe harbors trump red flags for years, and changing that removes all safe harbors, which would lead to a really bad result (third party liability on parties who have no way to get away from it).


            That's an interesting point, and I'll give it some thought. I think the other side of the coin is that by your interpretation there is no liability unless the operator is given notice of specific infringement and takes no action. If that's the case, I can set up a site dedicated to infringement, set up a DMCA agent, oblige any takedown requests that come my way, and be above the law. My site could be 100% about infringement while I rake in the dough, and no one could touch me. That doesn't sound right to me. Perhaps there's a middle ground?

             

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              Mike Masnick (profile), Dec 4th, 2010 @ 6:20pm

              Re: Re: Re: Re: Re:

              That's an interesting point, and I'll give it some thought. I think the other side of the coin is that by your interpretation there is no liability unless the operator is given notice of specific infringement and takes no action. If that's the case, I can set up a site dedicated to infringement, set up a DMCA agent, oblige any takedown requests that come my way, and be above the law. My site could be 100% about infringement while I rake in the dough, and no one could touch me. That doesn't sound right to me. Perhaps there's a middle ground?

              Well, I think the market actually takes care of that situation -- as we've seen. Basically, because those sites tend to realize that they're better off working with the big content providers, they tend to come up with market-based solutions (Audible Magic, Content ID, etc.) to make those content providers happy in general -- not because the law requires it. It's exactly what has happened naturally in the market place.

               

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                average_joe (profile), Dec 4th, 2010 @ 6:49pm

                Re: Re: Re: Re: Re: Re:

                Well, I think the market actually takes care of that situation -- as we've seen. Basically, because those sites tend to realize that they're better off working with the big content providers, they tend to come up with market-based solutions (Audible Magic, Content ID, etc.) to make those content providers happy in general -- not because the law requires it. It's exactly what has happened naturally in the market place.

                Funny how you look to the market, and I look to the law, to cure what ails us. :)

                I like that theory, but I'm not sure what encourages the criminally-inclined folks to work with "big content providers" when they're doing so well abusing the law on their own.

                 

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                  Anonymous Coward, Dec 4th, 2010 @ 7:27pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "you look to the market, and I look to the law"

                  I look to Dark Helmet. Sometimes you have to ask yourself, what would DH do?

                   

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              Karl (profile), Dec 7th, 2010 @ 11:20am

              Re: Re: Re: Re: Re:

              by your interpretation there is no liability unless the operator is given notice of specific infringement and takes no action.

              That's exactly how it should work.

              Speech is, by default, protected. It should not be considered "infringing" unless the copyright holder declares it's infringing. Even then, the speech should not be taken down unless the content provider both declares it's infringing, and declares that they want to provide an injunction against that infringement.

              For example: I release my music under a CC-NC license. Now, say some kid with a personal blog put my music up on his site. In theory, if that site has ads, it could be a "commercial use," thus infringing.

              However, I don't see it that way (like most CC artists). So, if that happens, I'll simply allow the use, even if technically it's infringing. If I never make a complaint, why should their blog hosts take down the content?

              That's actually one of the ways ContentID works. A rights holder "claims" a video, but he has the option of not taking it down, and instead making a cut of the ad money from that video. He also has the option of doing nothing at all.

              If YouTube was required to automatically take down all infringing content, without being told to do so, then rights holders wouldn't have those options.

              Incidentally, if you want to know why the courts ruled how they did, pay attention to the phrase "directly attributable."

               

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              Karl (profile), Dec 7th, 2010 @ 3:01pm

              Re: Re: Re: Re: Re:

              One other thing I should mention:

              I can set up a site dedicated to infringement, set up a DMCA agent, oblige any takedown requests that come my way, and be above the law.

              Depends on how you define "dedicated to infringement." DMCA notices apply to sites where users post content, not the sites themselves.

              So, let's say you did exactly this. What you'd find is that, contrary to your intent, your site wouldn't be "dedicated to infringement" for very long. Depending on the type of site, you'd have musicians sharing their own music, filmmakers sharing DivX versions of their films, open-source engineers using your site to distribute their software, and so on.

              In other words, eventually you'll become more "legit" than "pirate," whether you want to or not. Copyright holders are users too, so any site that gives users freedom, convenience, and popularity, will offer those same things to artists, authors, or coders. If it's useful to "pirates," it's equally useful to artists.

              Assuming, of course, that your site is any good - but if it wasn't, the "pirates" wouldn't use your site either, and you'd go out of business whether the law shut you down or not.

               

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            Anonymous, Dec 5th, 2010 @ 4:03pm

            Re: Re: Re: Re:

            By that reasoning, there is no safe harbor. If I want to destroy any company's safe harbor, I just upload content to their site, and boom, it's gone.

            Not in the slightest. If someone does that, you remove it. Bingo, you're in compliance.

            All these sites are perverting safe harbor because they make money on the backs of illegal content. They know it, and until forced, won't do anything to stop it.

            Does a grocery store that sells cocaine get to stay open if they say they didn't know it was there, and then they remove it?

            No, they get shut down. And so should websites.

            If you weren't actually pro-piracy you'd be using this blog to encourage a tech solution to musicians getting ripped off. Everyone knows there are ways for these sites to determine what's legal and what isn't.

             

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              Anonymous Coward, Dec 5th, 2010 @ 5:33pm

              Re: Re: Re: Re: Re:

              Can you show one instance YouTube didn't comply with a takedown notice?

               

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              Chris Rhodes (profile), Dec 5th, 2010 @ 8:36pm

              Re: Re: Re: Re: Re:

              Not in the slightest. If someone does that, you remove it. Bingo, you're in compliance.

              Which is what YouTube does, and thus is in compliance.

              What else ya got?

               

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                Anonymous, Dec 6th, 2010 @ 2:46am

                Re: Re: Re: Re: Re: Re:

                I've got no problem with YouTube at all.

                Now everyone else needs to start taking responsibility for themselves like they did.

                 

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              Karl (profile), Dec 7th, 2010 @ 11:31am

              Re: Re: Re: Re: Re:

              Not in the slightest. If someone does that, you remove it. Bingo, you're in compliance.

              According to Joe's interpretation, you would not be in compliance. That's the problem. According to him, just a "general knowledge" that there is infringing content somewhere, is enough to be considered a "pirate site." Knowledge of specific infringement isn't required.

              Does a grocery store that sells cocaine get to stay open if they say they didn't know it was there, and then they remove it?

              If a cop discovers that teenagers like to sell cocaine in the parking lot of a grocery store, does the grocery store get to stay open? Yes, it does.

              Everyone knows there are ways for these sites to determine what's legal and what isn't.

              Yes: the rights holders tell them. In absence of that, it shouldn't be considered infringing.

               

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        petegrif (profile), Dec 4th, 2010 @ 10:17am

        Re: Re:

        viacom screwed up and that is bad from a PR point of view but is not directly relevant to youtube's liability.

        What it does bear upon is the practical difficulties for youtube in assessing what is and what is not copyright and acting expeditiously to remove material.

         

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      petegrif (profile), Dec 4th, 2010 @ 10:15am

      Re:

      "How the district court could apply the law and NOT find that YouTube lost their safe harbor is beyond me."

      I can absolutely understand that. If there was not absolutely blindingly obvious evidence that youtube just didn't give a damn and were aiding and abetting then they would be at serious risk, but it would be for a jury to decide. I don't think it is as clear as you suggest that that is the case wrt youtube. So it seems to me a jury trial is appropriate.

      "the district court acknowledged that "a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material," and that the infringing material "was attractive to users," and "enhanced defendants' income from advertisements." SPA9. I"

      I do find that surprising. I can't see how the court could find that "a jury could find..." and issue a summary judgement that there is no case to answer.

       

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        average_joe (profile), Dec 4th, 2010 @ 12:15pm

        Re: Re:

        This is one case, i think, in which the ends justify the means, or rather, there is nothing wrong with what youtube did, there is something wrong with the law that says youtube shouldn't have been doing it.

        But "the ends justify the means" is not a valid defense. I love YouTube as much as the next person. I just simply think they lost their safe harbor and they're getting called out on it. How they operate nowadays is great. It's how they operated a few years back that's the problem.

        I do find that surprising. I can't see how the court could find that "a jury could find..." and issue a summary judgement that there is no case to answer.

        Send it back to the district court and let's have it out in front of a jury. Sounds like fun to me. And then after that, we can go back to the court of appeals. Fun.

         

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      Anonymous Coward, Dec 4th, 2010 @ 6:13pm

      Re:

      "the right and ability to control such activity."


      The important part you miss is "ability to control such activity", YouTube have no way to control such activity since YouTube cannot know what is and what is not legal, should content ID remove all music from all artists legal or otherwise? should Google remove all videos legal or otherwise?

      Those pose serious concerns to a) Free Speech b) education c) Fair competition on the market place.

      Should this be removed?

      21 Jump Street
      http://www.youtube.com/show/21jumpstreet

      Is that legal or illegal?

       

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        average_joe (profile), Dec 4th, 2010 @ 6:43pm

        Re: Re:

        The important part you miss is "ability to control such activity", YouTube have no way to control such activity since YouTube cannot know what is and what is not legal, should content ID remove all music from all artists legal or otherwise? should Google remove all videos legal or otherwise?

        I think "ability to control such activity" in the statute means they could have controlled it by blocking access to it or removing it if they wanted to, and nothing more. Keep in mind that the DMCA only requires that they were "aware of facts or circumstances from which infringing activity is apparent." It doesn't require that they were aware of such facts or circumstances and had a magic wand to cure it. What they couldn't do was know about it and do nothing. That's not enough, when you know.

        Those pose serious concerns to a) Free Speech b) education c) Fair competition on the market place.

        Should this be removed?

        21 Jump Street
        http://www.youtube.com/show/21jumpstreet

        Is that legal or illegal?


        By the looks of it, they are legit. I don't think someone without authority to do so could post several seasons of "21 Jump Street" like that. That's particularly funny since I just watched the two-parter pilot of that show this morning on Hulu. I loved that show when it was new. :)

         

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          Anonymous Coward, Dec 5th, 2010 @ 12:40am

          Re: Re: Re:

          Remove what exactly?

          Being aware and doing nothing is what it says there, the DMCA says nothing about loosing anything if you are only aware, it states there on the law that to loose the safe harbor you should also not be diligent, can you prove YouTube was not diligent in dealing with copyright infringement wherever they found it?

          Google is aware that there is infringing content in there, but it is also very diligent in dealing with it whenever it finds it and this goes back to the problem of identifying infringement which Google cannot do because it doesn't have access to data necessary to do so and even if it did have and found some content that may or may not infringe how would they recognize that?

           

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          Anonymous Coward, Dec 5th, 2010 @ 1:02am

          Re: Re: Re:

          But you are not certain the show is being distributed by a legitimate source are you?

          Probably is legit, is it, how can you be sure?

          If you are the owner of the copyright and sign various distribution deals with different companies and they start sending DMCA on each other content is Google responsible for the mess?

          Are copyright owners start to give Google lists of distributors and who can do what with what at what time and what place?

          How Google can know if something is fair use or not.

          The aware part of the DMCA is about "hey I found infringing material here" not "There is illegal content here I just can't find it"

          (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;


          If they are aware that something infringes they should remove it, but if they do not they don't loose safe harbor protections.

          Source:
          http://www.law.cornell.edu/uscode/17/usc_sec_17_00000512----000-.html

           

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          Richard (profile), Dec 6th, 2010 @ 3:19am

          Re: Re: Re:

          I think "ability to control such activity" in the statute means they could have controlled it by blocking access to it or removing it if they wanted to, and nothing more. Keep in mind that the DMCA only requires that they were "aware of facts or circumstances from which infringing activity is apparent." It doesn't require that they were aware of such facts or circumstances and had a magic wand to cure it. What they couldn't do was know about it and do nothing. That's not enough, when you know.

          You persistently ignore the real point here.

          There is a huge difference between knowing that it is likely that there is infringing content on the site and knowing specifically that a particular piece of content is infringing. In the latter case you need to do something in the former it is obvious that you don't.

          Viacom is trying to claim that merely knowing in general terms that there is infringing content on the site requires that you take action. This is clearly NOT the intention of the law however - otherwise the notice and takedown mechanism would have been redundant.

           

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      Richard (profile), Dec 6th, 2010 @ 1:34am

      Re:

      There's more to the DMCA than just taking down content once a notice is received.

      From the brief:

      Section 512(c) excludes a provider of storage services from the safe harbor if it obtains either "actual knowledge that the material or an activity using the material on the system or network is infringing" or "in the absence of such actual knowledge . . . aware[ness] of facts .....



      There is a big difference between knowing that there is likely to be infringing material on the site and knowing exactly which material is infringing. Any reasonable reading of the law must distinguish between those two different cases. The fact that Viacom uploaded some material themselves just underlines the impossibility of knowing which material is infringing - in the absence of clear notification.

      If this were not the case (or not the intention of the law) there would have been no need for the takedown notice system.

       

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    TDR, Dec 4th, 2010 @ 10:42am

    It's times like these that I wish the right of appeal could be denied.

     

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    abc gum, Dec 4th, 2010 @ 3:09pm

    Re: VERSACE

    Sounds like a scam

     

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    Eugene Johnson, Dec 4th, 2010 @ 4:21pm

    Hyperbole Card

    I'm so sorry. There is a lot of "language" in this article that I'm not familiar with, which is embarrassing because the particulars here, I'm sure, affect my activities in some way. Maybe if were familiar with the bill in question, or if I knew what the "DMCA" is, this would make more sense to me. But this article does cover the concept of hyperbole very well. KUDOS!

     

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    abc gum, Dec 4th, 2010 @ 8:13pm

    "if I knew what the "DMCA" is"

    I love that song !

     

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    Anonymous Coward, Dec 5th, 2010 @ 1:14am

    (c) Information Residing on Systems or Networks At Direction of Users.—
    (1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
    (A)
    (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
    (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
    (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
    (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
    (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

     

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    Not an electronic Rodent, Dec 5th, 2010 @ 2:28am

    Doom!

    DOOM! I say! Yea verily the seas will boil and the rivers run with blood, the mountains shall be cast down and a darkness shall fall across all the land. A plague shall arise to take the pet of every household and woe be unto you who do such a thing for ye shall be curs-ed until the end of time and a plague of boils shall be upon your house that your children will not get good dates.... Oh yeah and well no one'll buy our stuff WAAAAAA!!!

     

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    Anonymous Coward, Dec 5th, 2010 @ 6:53am

    When I read about stuff like this I can't help but think of Dictators and Nazis. It makes me reach for my gun and make sure it's close by.

     

    reply to this | link to this | view in chronology ]

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    jcar2 (profile), Dec 5th, 2010 @ 4:40pm

    Here is an excellent analysis...

    Groklaw has an in-depth, detailed analysis on this case. Very informative, and understandable. Well worth reading.

    http://www.groklaw.net/article.php?story=20101204141824160

     

    reply to this | link to this | view in chronology ]


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