RIAA Admits It Wants DMCA Overhaul; Blames Judges For 'Wrong' Interpretation

from the uh-sure dept

We've discussed how E-PARASITE/SOPA is really an attempt by the entertainment industry to rewrite the DMCA, even though they pretend otherwise. However, it appears that the RIAA is now comfortable with admitting that's the real goal of its legislative agenda these days. The RIAA's litigation boss, Jennifer Pariser, famous for making highly questionable statements under oath in trials against people accused of sharing music they love, is now claiming that the DMCA wording is great, but that the interpretation by the courts has just been dreadful -- so Congress should clarify that and slap the judges down. As reported by Greg Sandoval at CNET:
"I think Congress got it right, but I think the courts are getting it wrong," Pariser said during a panel discussion at the NY Entertainment & Technology Law Conference. "I think the courts are interpreting Congress' statute in a manner that is entirely too restrictive of content owners' rights and too open to [Internet] service providers.

"We might need to go to Congress at some point for a fix," Pariser added. "Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions."
This is pretty typical of the RIAA. The one part of the DMCA that they fought tooth and nail when it was put together was the service provider safe harbors. However, it was a key part of the negotiations with the tech industry, as part of the tradeoff to get the rest of the (dreadful) DMCA. The RIAA has always hated the safe harbors. It's just so much easier to make third party service providers liable. It's easier to sue service providers rather than fans.

So now they're rewriting history, pretending that the safe harbors weren't intended to do what they do. This is a joke. If you talk to folks on the tech side who negotiated the safe harbors, this was exactly how the safe harbors were meant to work. If anything, some of those involved are upset that the safe harbors aren't even stronger (as they were in the CDA for non-intellectual property issues). What Pariser and the RIAA really mean when they mock judges for their rulings on the safe harbors is that they never liked the safe harbors in the first place, so the best way to get what they always wanted (i.e., no real safe harbors) is to pretend that it's all a big "misinterpretation" that needs clarification from Congress.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    The eejit (profile), Nov 8th, 2011 @ 7:14am

    Well, the judges must be wrong: the MAFIAA said so!

    Pull the other one, it's got legalese on.

     

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  2.  
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    Nathan F (profile), Nov 8th, 2011 @ 7:19am

    I'm just waiting for the service providers to finally get fed up with the entertainment industry and just tell them "It is too difficult doing business with you." and cut them off of the internet at the provider level.

    Will most likely never happen but *shrug*

     

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  3.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 7:20am

    Mike, what they are saying sadly is right. The safe harbors were really intended to protect companies that have no influence over content or it's presentation, like real hosting companies, connectivity providers, etc.

    Instead, what happened is that a whole new class of "service providers" popped up, and suddenly everyone on the internet was a "service provider" instead of a website.

    Youtube is a great example. They generate their own HTML, they sort, aggregate, mix, and republish content on new pages, ad advertising, and the like. Yet they want to be treated in the same manner as your ISP who only provides connectivity.

    The notification was intended to keep straight hosting companies (those that provide a server and a connection) from being responsible for the content on their servers. Instead, it has been taken to include things like file lockers, which are not hosts in any traditional sense, and who make their money not off of hosting the material, but in charging access for it - and offer the hosting option entirely anonymously.

    What was intended, what was understood, and what happened are three totally different things.

    So no, they aren't going back to change DMCA, they are just working to narrow down what a content aggregation service is allowed to do.

     

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  4.  
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    Josef Anvil (profile), Nov 8th, 2011 @ 7:20am

    Quick fix

    All the RIAA needs to do instead of SOPA, is to hop over to the DOJ and claim that that file sharing is a terrorist activity or is used to fund terrorist activities. Then they can have the DOJ classify its own secret interpretation of the DMCA.

    Problem solved.

     

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  5.  
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    :Lobo Santo (profile), Nov 8th, 2011 @ 7:28am

    Re: Gold Star~!

    9.5 of 10 and a Gold Star~!

    Spoken as though it could be true, without hesitation or doubt! Just the right mix of fact, opinion-as-fact, and outright BS to keep most people on their toes and guessing.

    Very good, there are many who could learn from your example.

     

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  6.  
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    Ninja (profile), Nov 8th, 2011 @ 7:32am

    Re:

    Youtube is a great example. They generate their own HTML, they sort, aggregate, mix, and republish content on new pages, ad advertising, and the like.

    Shit. I thought all those were real ppl on the videos. I didn't know 3D and hardware had advanced that much that you can generate laughing babies via computer. Google is truly scary =(

     

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  7.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:32am

    Re:

    I'm just waiting for the service providers to finally get fed up with the entertainment industry and just tell them "It is too difficult doing business with you." and cut them off of the internet at the provider level.

    You mean Comcast would shut off NBC/U.

    Will most likely never happen but *shrug*

    Ya think?

     

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  8.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:36am

    Re: Re:

    Ninja, please! The videos are video... but on a real host, you would have onthe the video file. Youtube adds the html, they add the advertising, they sort the videos, the publish them on other pages, allow for embedding into other sites, etc.

    They aren't just a "service provider", they actually publish a website.

     

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  9.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 7:36am

    Re: Re: Gold Star~!

    Please, tell me where I am wrong.

     

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  10.  
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    Ninja (profile), Nov 8th, 2011 @ 7:36am

    Re: Re: Gold Star~!

    Indeed a master-trolling-piece. I almost shed tears over it!

     

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  11.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:37am

    Re:

    Labels and studios also are service providers are they not?

     

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  12.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:39am

    Re: Re: Re: Gold Star~!

    Read my sarcasm @ Ninja, Nov 8th, 2011 @ 7:32am

    Youtube DOESN'T produce their content, PEOPLE upload stuff. Much like cyberlockers (although some of them do promote infringement to boost their sales while others such as RapidShare works seriously to comply with DMCS stuff).

    But you know that, you are just trolling ;)

     

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  13.  
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    :Lobo Santo (profile), Nov 8th, 2011 @ 7:39am

    Re: Re: Re: Gold Star~!

    You're doing fine, you got 95%.

     

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  14.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:41am

    Re:

    The DMCA also is abused daily, it is not being used to curb filesharing it is being used to attack other business.

    What the MAFIAA wants is cart blanche to threaten other business so they can get away with their absurd monopoly of life + 95 years.

    Theirs is not the only business that needs protections, other business needs even more protection against people who already have absurd powers, the real criminals are artists and their representatives i.e. MAFIAA.

     

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  15.  
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    Ninja (profile), Nov 8th, 2011 @ 7:41am

    Re: Re: Re:

    But, but... How can they have that many employees to publish those videos?! I mean they even employ little laughing babies! Must be a very nice company for generating that many jobs! They have to add to their internal rules that their employees shouldn't publish content they haven't produced themselves like the laughing baby case.

    In any case, I'm sure the infringement will completely cease since their employees are the only ones building the site.

     

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  16.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:42am

    Re:

    Here watch what happens when somebody has absolute power over others.

    Judge William Adams beats daughter for filesharing

     

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  17.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:43am

    Re: Re: Re: Re: Gold Star~!

    Well if that is true when are the labels and studios going to stop financing criminals?

     

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  18.  
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    fiestachickens (profile), Nov 8th, 2011 @ 7:43am

    Re:

    I think we'll need to define the term "host". As someone who works in the computer science field, a "host" to me is anything that stores data that I can access remotely. That can be via an API, a web interface, or a mobile device.

    Further, wikipedia defines a service provider as "A service provider is an entity that provides services to other entities. Usually, this refers to a business that provides subscription or web service to other businesses or individuals. Examples of these services include Internet access, Mobile phone operators, and web application hosting. The term is more often applied to communication services than to other kinds of service industry."

    I strongly, strongly agree with this definition. It seems that we are arguing that this definition itself is wrong because, if it is correct, YouTube is genuinely a Service Provider.

    Would you define "host" for me and "Service Provider" for me? I think the clarity would help drive this discussion some more.

     

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  19.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:45am

    Re: Re: Re:

    Then when studios, labels, radio and TV will be forced not to do business with criminals?

     

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  20.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:48am

    Judicial branch trying to do its job

    The checks and balances put in place by the founding fathers of the U.S. specifically designed the Judicial branch to be able to balance out a Legislative and Executive branch that had gone off the deep end. This is where laws live or die by case rulings.

    If the Judicial branch has "destroyed" the DMCA, then that means they have decided that the DMCA was *not* in the country's best interest per the courts.

    Congress needs to be put in its place - if it's drafting shitty laws, then those laws need to fail - period.

     

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  21.  
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    out_of_the_blue, Nov 8th, 2011 @ 7:49am

    DMCA /wasn't/ intended for symbiotic copyright infringement.

    It certainly wasn't passed to create a legal loophole of separate link sites and file hosts to dodge copyright. You're blatantly wrong there, so your piece flops, impotent as usual.

    "people accused of sharing music they love" -- What a cute elliptical evasion of the truth that they were engaged in stealing.

    It's /your/ egregious mis-statements, Mike, that drive me to even minimally support the RIAA view; such weak and wrong arguments are why I suspect you of being an industry shill.

     

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  22.  
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    Anonymous Coward, Nov 8th, 2011 @ 7:49am

    Re: Re:

    You are asking a troll to acknowledge something?

     

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  23.  
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    fiestachickens (profile), Nov 8th, 2011 @ 7:52am

    Re: Re: Re:

    Well, sure. Why not? If they have a strong opinion, then I'll just ask them to defend that opinion. I figure it will accomplish one of two things:

    1. They'll explain their point of view and we all can have a good discussion
    2. They respond with insults, and I ask them again, noting that they can either explain their point of view, or be discounted entirely

    The burden of proof is a great tool to employ :-)

     

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  24.  
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    Anonymous Marcus, Nov 8th, 2011 @ 7:55am

    Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    What a cute elliptical evasion of the truth that they were engaged in stealing.


    No, they were engaged in copyright infringement.

     

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  25.  
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    Jay (profile), Nov 8th, 2011 @ 7:57am

    Re: Re: Re:

    Oh EM Gee! Because they aggregate data and remain content neutral until someone points out the problem, it's their fault that someone is infringing on a copyright.

    *gasp*
    Tell the police! They have to shut Youtube down because they're liable for someone else's content on a website!

     

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  26.  
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    fiestachickens (profile), Nov 8th, 2011 @ 7:57am

    Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    I think there are two points here that you're missing:

    1. YouTube employs copyright filters and actively shuts down content based off of DMCA requests. They are very proactive and responsive to copyright issues. Given that, can you point out more how they are dodging copyright? Perhaps I am missing something?
    2. Stealing is not the same thing as copyright violation. Remember, stealing is when the original good no longer exists for the original owner to profit from. Copyright violation is when they copy a file that they were not authorized to copy. There is no lost good.

     

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  27.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 7:57am

    Re: Re: Re: Re: Gold Star~!

    Yet, if a newspaper or magazine used content without properly sourcing it, or against copyright, they would be in big trouble... and they are just publishers, they don't produce the photo content.

    See how silly your argument is?

     

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  28.  
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    Gwiz (profile), Nov 8th, 2011 @ 7:58am

    Re: Quick fix

    Then they can have the DOJ classify its own secret interpretation of the DMCA.

    I think they already do have a secret interpretation of copyright laws - just look how they are stretching existing laws in their legal theories concerning the domain names they have seized for alleged copyright violations.

     

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  29.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 8:07am

    Re: Re: Re:

    Ninja, please! The videos are video... but on a real host, you would have onthe the video file. Youtube adds the html, they add the advertising, they sort the videos, the publish them on other pages, allow for embedding into other sites, etc.

    Where do you draw the line? A typical web host does a lot more than just provide "a server and a connection". It sets up and manages server software, virtualizes server spaces, provides nameservers, provides a graphical back-end with analytics and file managers - most provide website templates and site building tools, pre-made scripts and plugins, ecommerce platforms...

    By your analysis, couldn't you argue that a web host can only provide a functioning box - making you install Apache/etc. and set it all up yourself? If a host offers an out-of-the-box ecommerce solution (as most do now) would that make them liable for someone who sells counterfeit goods?

    I don't think the line on "service provider" versus "publisher" is very easy to draw technologically... the only reasonable test seems to be: who is responsible for uploading content. And that's the user, whether it's a web host or a file locker.

     

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  30.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 8:11am

    Re: Re: Re: Re: Re: Gold Star~!

    Yet, if a newspaper or magazine used content without properly sourcing it, or against copyright, they would be in big trouble... and they are just publishers, they don't produce the photo content.

    But they choose the content. You are misaligning your analogy - the service provider in this case is more like the printer. If a newspaper contracts its printing from a separate press company (as many do) and that newspaper runs afoul of copyright, I doubt many courts would accept the owner of the press as the liable party.

     

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  31.  
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    E. Zachary Knight (profile), Nov 8th, 2011 @ 8:13am

    Re: Re: Re: Re: Re: Gold Star~!

    One problem with your comparison. The newspaper and magazines seeks, hire and publish material. The magazines and newspaper have complete editorial control over what gets published. YouTube does not. YouTube has no editorial control over the content. None at all. To claim otherwise is a lie.

    Those rankings and ads? Those are all controlled by the users. No video gets advertising unless the uploader requests it. No video get ranked unless the viewers rank it. Nothing is done by YouTube that would give it editorial control over content.

     

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  32.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 8:15am

    Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    What a cute elliptical evasion of the truth that they were engaged in stealing.

    What a cute hyperbolic evasion of the truth that they were engaged in infringement.

     

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  33.  
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    el_segfaulto (profile), Nov 8th, 2011 @ 8:15am

    Re: Re:

    Pfft, defining host is easy!

    #DEFINE Host;

    int main ()
    {
    cout >> "Thank you, I'll be here all night";
    }

     

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  34.  
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    Ninja (profile), Nov 8th, 2011 @ 8:16am

    Re: Re: Re: Re:

    His two neurons are too overloaded thinking how to swear at Mike to actually try to see the complexity.

     

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  35.  
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    Anonymous Marcus, Nov 8th, 2011 @ 8:19am

    Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    Quit stealing my/your thunder!

     

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  36.  
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    el_segfaulto (profile), Nov 8th, 2011 @ 8:19am

    Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    ...so your piece flops, impotent as usual.

    Personal problems at home?

     

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  37.  
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    jupiterkansas (profile), Nov 8th, 2011 @ 8:23am

    Re:

    Yes, we should do away with anything internet-related that might be used for piracy. File lockers, Youtube, Google, Facebook, Email, discussion boards, and blogs.

    The internet should just be a DRM storefront with advertising.

     

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  38.  
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    Ninja (profile), Nov 8th, 2011 @ 8:24am

    Re: Re: Re: Re: Re: Gold Star~!

    Yes, very silly. Youtube actually chooses everything that is posted on the site and they obviously have man power to check every 48h of video that's posted per minute.

    Who's silly again?

    @Marcus and Zack
    That. He's either a clueless troll or he's deliberately misleading. And a troll regardless.

     

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  39.  
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    MrWilson, Nov 8th, 2011 @ 8:55am

    Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    OOTB - You keep using slashes for emphasis, it seems. Did you notice that you can use basic HTML tags to style your comments?

    It's /your/ egregious mis-statements, Mike, that drive me to even minimally support the RIAA view


    If what you consider to be a poor argument from a person on one side of an argument so easily sways you to the other side, you must be highly susceptible to persuasive arguments. I recommend thinking for yourself before letting what your consider to be poor arguments make you bounce to the extreme opposite viewpoint.

     

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  40.  
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    Steve, Nov 8th, 2011 @ 9:01am

    So, let's say I'm running a site that allows users to upload videos. If the law says I'm going to be held liable when one of those videos is infringing, there has to be some way for me to tell whether any given video is infringing or not. Otherwise the law amounts to banning the whole practice of letting users upload anything.

    So, given a user-uploaded video, how can the site operator find out whether it is infringing or not?

    In the first place, almost everything that qualifies as any sort of expressive work is copyrighted as soon as it's created. So that doesn't tell us much.

    The next question is who is the copyright owner. If (as a site operator) I make users click something that says they're the owner or authorized by the owner, is that enough? If not, how can I tell? There is no central registry of copyrighted works. Even if there were, how could a site operator determine whether a video or music file was or was not the same as a work in the list, if the names were different?

    Next is the question of whether the upload is or is not authorized by the copyright holder. Again, there is no central registry of such things. It would take all the IT resources in the world to construct and maintain such a vast database of constantly changing information, and presumably some new, mythical technology to match actual files with items in the database.

    The companies seeking to destroy the "safe harbor" provisions do not even attempt to explain how any site owner could accept user content with risk of liability, if not for the "safe harbor" provisions. Demanding something impossible as a condition of operating is an order to shut down.

    Does techdirt have any way of verifying that this post does not infringe someone's copyright? If it had to do that, the risk of liability would require it to stop letting users post comments. Every site publishing anything from users would be subject to being bankrupted at any moment by users infriging copyright, because there is no way, even in principle, that it can prevent them doing so.

     

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  41.  
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    known coward, Nov 8th, 2011 @ 9:01am

    Re: Re: Re: Re: Re:

    now that is not very nice. The AC makes a cogent point, (we may disagree with it, but he still has a point). He did not call anyone a freetard, (a term i hate btw), he did not call mike an idiot and son of satan. Nor did he insult the intelligence of the reader community here. He is simply saying the law was designed to protect your local ISP's not content aggregators like Youtube.

    I too disagree with his point, I believe safe harbor was intended to apply not only to the pipe providers but also to sites like BBS’s, web forums, comments pages on weblogs etc, to prevent them being prosecuted for the violations put on their sites by end users. Personally I believe this applies to youtube as well, the AC does not. He makes the point that since youtube formats and sticks ads on the page to generate revenue they are not a neutral site in terms of content but a business that ultimately takes user uploads and modifies it making the active content producers, and therefore not allowed to use safe harbour as a defense.

    I do agree with the fact that even though youtube gets a tremendous volume of business via video uploads, if they are liable for the content, the volume itself does not eliminate their responsibility to make sure that content is legal. If youtube can not execute their business model without violating the law, well they need to change the model. Again I think youtube is ok in what they do, but I can see how other people feel otherwise, and I do not insult everyone who disagrees with me.

     

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  42.  
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    anonymous, Nov 8th, 2011 @ 9:03am

    Re:

    wrong! what they dont like is that they have to monitor files and it costs money to do that, as well as issue 'take down' orders when THEY THINK IT NECESSARY, EVEN WHEN WRONG!. what they want is exactly what is happening but someone else to pay for it! then they want the courts to agree with them on every case, again, even when wrong! these guys rip off more people for more money, more often than any amount of file sharing could ever do! why should everyone else do the work for them? if they want to make sure their stuff isn't posted, it's down to them to keep watch. if they find stuff and want it removed from whereever, it should be up to them to sort it out and all at their own expense, no one elses!

     

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  43.  
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    Aliasundercover, Nov 8th, 2011 @ 9:24am

    The lobbyists are right.

    The DMCA was intended to take all control over copyrighted material and the machines we use it on giving that power to the publishers. The exceptions for service providers are clear flaws to this purpose.

    They didn't get their money's worth and that is why they are back complaining. Once they are done reminding the pols who is in charge it will be fixed.

     

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  44.  
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    Anonymous Coward, Nov 8th, 2011 @ 9:24am

    Re: Re: Re: Re: Re: Gold Star~!

    Say it with me:

    Analog analogies are not like digital analogies because . . .

     

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  45.  
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    Jay (profile), Nov 8th, 2011 @ 9:24am

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

    So how is Youtube supposed to police all of the user created content?

     

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  46.  
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    MarksAngel (profile), Nov 8th, 2011 @ 9:31am

    Petition to Stop the E-Parasite Act

     

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  47.  
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    The eejit (profile), Nov 8th, 2011 @ 9:55am

    Re: Re: Re: Re: Re: Re: Gold Star~!

    One is colors, the other 0s and 1s?

     

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  48.  
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    The eejit (profile), Nov 8th, 2011 @ 9:58am

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

    With copious amounts of Handwavium.

     

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  49.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 9:59am

    Re: Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    hahaha... note to self: pay more attention to previous replies and to the names of ACs.

     

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  50.  
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    Anonymous Coward, Nov 8th, 2011 @ 10:02am

    Re:

    You are wrong. As usual. Or lying. Take your pick.

     

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  51.  
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    Anonymous Coward, Nov 8th, 2011 @ 10:16am

    Re:

    """So, given a user-uploaded video, how can the site operator find out whether it is infringing or not?

    In the first place, almost everything that qualifies as any sort of expressive work is copyrighted as soon as it's created. So that doesn't tell us much."""

    MAFIAA: Get your damn logic off my lawn!

     

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  52.  
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    Anonymous Coward, Nov 8th, 2011 @ 10:38am

    Re: Re: Re: Re: Re: Re: Gold Star~!

    Marcus, Youtube chooses the content. They aggregate it, they link it, they connect it, sort it, track it, and so on. They choose to do it with some automated tools, but in the end Youtube still has a signficant hand in what you see on every web page they serve.

    They chose not to look at everything they publish. That's their fault, not anyone else's.

     

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  53.  
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    Anonymous Coward, Nov 8th, 2011 @ 10:53am

    Re: Re: Re: Re:

    "If a host offers an out-of-the-box ecommerce solution (as most do now) would that make them liable for someone who sells counterfeit goods?"

    Nope, you are drawing the line in an odd place to try to make a point, but you are failing.

    See, even if they offer you a service such as this, they are not actively involved in it. If they are selling your a solution (or renting it to you), it is the same as renting you a server or any other feature (such as have MySQL or FFMpeg on the server example).

    Now, if they are also processing the credit cards, and taking an active part of your business, then they cross the line to no longer just offering hosting (naked services) and have become part of the business, not just someone providing a "pay for use" service. Remember, the collection of money is directly in the line of business, not off to the side.

    Templates and all that stuff are not editorial decisions. They are not choices. They are options, nothing more.

    "I don't think the line on "service provider" versus "publisher" is very easy to draw technologically..."

    I do. A real host would allow you to upload files, and would serve those files when someone requests them, and nothing more. Youtube is not that sort of a "host", in that they aggregate content and republish it on various pages. They aren't just giving you storage and a net connection that you can work with, they are running a website that publishes pages. They take your content uploaded and publish it, providing formating, advertising, layouts, branding, and all that other stuff. They aren't just storing your file.

    A file locker is the same issue - most of them don't just allow you to link directly to a file you upload and serve it, they put it on an html page, they put advertising, they split the file into blocks and they charge users to access the content. They are a reseller of your uploads, nothing less. They aren't just hosting.

    A host doesn't manipulate content, they provide the means by which YOU can manipulate content, producer web pages, sites, links, downloads... a publisher does those things. Youtube, most file lockers, and the like are all publishers... in the end. They aren't innocent, they aren't hands off... they are hands on, even if those hands are automated hands.

     

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  54.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 10:53am

    Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Okay, so all web hosts should be liable too then, right? They host the content, they maintain the software that makes it available, they manage its nameservers, they basically provide everything necessary for a user to upload their content. I fail to see how one is different from the other...

     

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  55.  
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    Anonymous Coward, Nov 8th, 2011 @ 10:55am

    Re: Re: Re: Re: Re: Re: Gold Star~!

    Ninja, YouTube doesn't choose what is uploaded - but they do choose what appears on every page they serve. They may do it via algo rather than human eye, but in the end, the page layouts, the ads, the choices made for presentation... those are all Youtube.

    Try to access an uploaded video on youtube without getting a youtube logo added, without popup ads, without links, etc.

    GOOD LUCK! You know the person who uploaded the file didn't do any of that. Must have been the page coding fairy.

     

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  56.  
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    Anonymous Coward, Nov 8th, 2011 @ 10:59am

    R.I.A.A.

    Real Ignorant Arseholes of America

     

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  57.  
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    Anonymous Coward, Nov 8th, 2011 @ 10:59am

    Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Marcus, no, no,no... why are you being so black and white here?

    A web host doesn't make editorial choices. They don't decide what is on your site. They don't decide your background colors, foreground colors, they don't put ads, links, or other things on your pages, they don't restrict direct access to your files if you choose to make them available.

    A web host provides you the digital equivilant to a phone and a phone line. They can add all sorts of features on the phone, they can give you call waiting.. but in the end, it's just a phone. They don't make you make those obscene phonecalls to your ex, they don't make you dial 911 repeatedly after a night of drunken partying... they just provide the phone line.

    Web hosts provide everything needed - but they don't have a say in content at all. They don't get in the middle of you doing what you want with your server / account / domain.

     

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  58.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 11:01am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    But... YouTube doesn't make users upload anything either. They don't choose the content, they don't control it.

    I'm still honestly not seeing the distinction. It seems like either they are both content-neutral service providers, or they aren't. After all, both simply provide the tools to upload and host content - they just do so in different ways.

     

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  59.  
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    Rikuo (profile), Nov 8th, 2011 @ 11:05am

    Re: Re:

    Oh for god's sake. Yes, what that judge did was horrible, but I'm getting sick and tired of seeing that link in these comments. A guy beating up his daughter has NOTHING to do with the topics and articles on Techdirt.

     

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  60.  
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    Anonymous Coward, Nov 8th, 2011 @ 11:06am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    What editorial choices are YouTube making again?

     

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  61.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 11:06am

    Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Try to access an uploaded video on youtube without getting a youtube logo added, without popup ads, without links, etc.

    Umm... okay. Here is a direct link to download a YouTube FLV. That took me about five seconds.

     

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  62.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 11:09am

    Re: Re: Re: Re: Re:

    Where you see a clear line, I see a totally arbitrary distinction... I fear you don't know much about web hosting technology, but it isn't just a simple box-and-phone-line - it is actually a lot of complex software that does indeed algorithmically manipulate the data you upload in order to serve it to the web.

     

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  63.  
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    Rikuo (profile), Nov 8th, 2011 @ 11:12am

    Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    Don't bother MrWilson. I commented on that about a week or two ago to OotB...in the end, I treat his comments with the same contempt I hold for someone who writes "OMG like ur de bomb". Such a piss poor grammar only works in cases like text messaging, where you have limited space.
    Here, Ootb, you know you can use real HTML tags, but steadfastly refuse to use them. It makes your comments look like "No! I'll write what I want!", like an immature five year old.

     

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  64.  
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    Anonymous Coward, Nov 8th, 2011 @ 11:12am

    Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Yeah, they choose what appears on every page they serve in the same way Microsoft chooses what values in an excel spreadsheet appear at the top when it is sorted. I mean, Microsoft programmed the algorithm of the sort so they are editorially controlling the content I put on the spreadsheet. Therefor if the first thing on the list is libelous obviously Mircrosoft is legally culpable for that libel. At the very least they are responsible for detecting that it's libel and shutting it down.

     

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  65.  
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    Anonymous Coward, Nov 8th, 2011 @ 11:16am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Marcus, youtube don't allow you to directly access the uploaded file. It can only be seen as part of their publication, "youtube.com". You aren't uploading to a blank host, you are uploading something to be published on their website. THEIR WEBSITE, not your own.

    Youtube sets up the pages, they control what is shown with it, how it is shown, how it is listed, what other pages it publishes it on, etc. You as the uploader don't control that.

    As soon as they take control of the file and start making choices as to how it is used, they stopped being a host and started to be a publisher.

     

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  66.  
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    Anonymous Coward, Nov 8th, 2011 @ 11:18am

    Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Ummm yeah.. right.

    I too can look at the code and attempt to download the pieces. Your link sucked by the way, broken with way too much stuff in it, and required the user to be logged in even have a chance.

    The link they give you when you upload something isn't the file, it's a webpage.

    Why do you have such a hard time grasping a simple concept?

     

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  67.  
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    Anonymous Coward, Nov 8th, 2011 @ 11:19am

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

    Marcus, I know web hosting very well... thanks for asking. All that wonderful software, all that wonderful technology... none of it is making editorial choices.

    Sorry you can't understand a very basic concept.

     

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  68.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 11:20am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    So? When you upload to a web hosting company you are uploading something to be hosted on THEIR SERVER, not your own.

    I still feel like it's a totally arbitrary distinction you are making, simply because one thing is newer and feels "different" while the other runs on such old and deeply ingrained technology that you don't think about it anymore.

     

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  69.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 11:26am

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

    YouTube is not making editorial choices either. They are providing a neutral platform.

    Next?

     

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  70.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 11:28am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    The link they give you when you upload something isn't the file, it's a webpage.

    So? When you sign up for web hosting, they don't give you a blank wired box for you to work with. They give you a fully-stocked web-hosting suite with tonnes of tools to help you host your content. Still not seeing the difference.

     

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  71.  
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    Anonymous Coward, Nov 8th, 2011 @ 11:29am

    Re: Re:

    " strongly, strongly agree with this definition. It seems that we are arguing that this definition itself is wrong because, if it is correct, YouTube is genuinely a Service Provider."

    It's part of the problem. Youtube isn't a service provider, any more than Wired.com is a webhost. Youtube accepts user contributions to their website. They publish.

    The wikipedia definition makes it pretty clear, "he term is more often applied to communication services than to other kinds of service industry". The original idea of DMCA wasn't to give a pass to every website on earth as a "service provider" but only to exempt those who provide what might be called "naked services".

    Maybe the easier way to define a host is in the end result. If you have a host for your files, you and you alone control how those files are presented, you choose the file names, the directory structure that you store them in, you choose if they need password access or not, you control how you will present them if you will put them on html, as direct files, or anything in between. If there is a charge for access, you and you alone will be the one deciding how that charge is made, how much, to who, and what access it grants. Your hosting company provides you the technology to make it possible, but they do not get involved in the operation of your server / hosting space.

    For most people, that host is a service provider.

    Now, Youtube? Not a host, because you can't control the content or access to it. You cannot design your pages, you cannot charge for access, you cannot decide your directory structures, or anything like that - someone else makes all of those choices for you. Youtube is a publication, one that accepts user submissions to appear on it's website.

    File locker? Pretty much the same - you can't control anything to do with the file once uploaded (except perhaps to delete it), you don't control access, you can't decide where it will appear, you cannot control access to it - that is decided by the file locker site. It's their URL, their servers, their web pages, their design, their access control... they choose, not you.

    It's not east to put in words, but simple in concept.

     

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    Planespotter (profile), Nov 8th, 2011 @ 11:30am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    So what about embedding? I can upload a whole tv series, give it some wacky name, bury it deep so no one ever looks at it and then embed those videos onto a website of my creation. People would never go to youtube.com.

     

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  73.  
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    Anonymous Coward, Nov 8th, 2011 @ 11:35am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Marcus, just like a rental house - you rent a server, it's "yours" even if they are the ones who own it.

    "I still feel like it's a totally arbitrary distinction you are making, simply because one thing is newer and feels "different" while the other runs on such old and deeply ingrained technology that you don't think about it anymore."

    Not at all. The answer isn't in "who owns the box" or "this is different", it's in control, application, and presentation. Combining anonymous uploading with non-responsiblity for the sites that publish these user contributions has created a legal null, where people can act with impunity and nobody is responsible for anything.

    You are confusing a legal and responsibility issue with a technical one. The 1s and 0s aren't doing anything wrong - the people are.

     

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  74.  
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    Anonymous Coward, Nov 8th, 2011 @ 11:39am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Yet as soon as you embed it off of youtube, there is a youtube logo, possibly youtube advertising, and clicking on the video would take you to... youtube.

     

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  75.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 11:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    But in order to solve the legal issue, you need a clear definition of what qualifies as a publisher.

    So is it your position that branded free hosting platforms like Blogger, Tumblr and Wordpress.com should all be liable for every user-created blog they host? Because that seems highly problematic.

     

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  76.  
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    Karl (profile), Nov 8th, 2011 @ 11:56am

    Re:

    The safe harbors were really intended to protect companies that have no influence over content or it's presentation, like real hosting companies, connectivity providers, etc.

    This is, of course, completely false. If this were true, 17 USC 512(c) would not exist.

    It's also very clear if you read the congressional record that sites like YouTube were absolutely supposed to be included in the DMCA safe harbors. ("For example, the activity at an online site offering audio or video...")

    So, no, what they (and you) are saying is absolute bullshit.

     

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    Planespotter (profile), Nov 8th, 2011 @ 11:58am

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

    What editorial process is there in algorithms that look at words and try and offer videos that "may" be similar to what you have just watched? or in placing adverts based on keywords?

    They aren't actually deciding what to put on the page they are letting the 1's and 0's do it for them.

    What really pissed me of about the Entertainment industry is they contribute a very small % of a nations GDP but still manage to get laws passed that favour them... if the Tech industry started getting laws passed based on the % of GDP they create the politicians and law systems would collapse under the weight of requests.

     

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    Chosen Reject (profile), Nov 8th, 2011 @ 12:03pm

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

    Name the person or even the title of the person at YouTube that makes an editorial choice regarding the content uploaded by users. You can't, nor can anyone in the employ of YouTube, because they don't exist. YouTube makes the same editorial decisions for which videos to display as a webhost makes for what files to display. You upload a file to one or the other, and it gets displayed based on the configuration of the software. They are the exact same in that regard.

     

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  79.  
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    Chosen Reject (profile), Nov 8th, 2011 @ 12:15pm

    Re: Re: Re:

    Going by your definition, Amazon should also be liable for copyright infringement if someone writes some copyrighted text (a song, poem, short story, etc) in a review. You can't control that review once you've written it nor can you control the access to it. You cannot design Amazon's review pages, you cannot charge access to it, you cannot decide the directory structure Amazon uses for reviews, or anything like that - someone else makes all of those choices for you. Amazon's reviews are a publication, one that accepts user submissions to appear on it's website.

    Let's keep going with this. Craigslist also ought to be held liable for any copyrighted text or images you put in your craigslist ads. Again, you can't control anything to do with the ad once uploaded (except perhaps to delete it), you don't conrol access, you can't decide where it will appear, you cannot control access to it - that is decided by craigslist. It's their URL, their servers, their web pages, their design, their access control... they choose, not you.

     

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  80.  
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    Karl (profile), Nov 8th, 2011 @ 12:17pm

    Re: Re: Re:

    Youtube isn't a service provider, any more than Wired.com is a webhost.

    You keep saying this, and it keeps being false. The Congressional record uses "an online site offering audio or video" as the example of what constitutes a "service provider."

    Not a host, because you can't control the content or access to it. You cannot design your pages, you cannot charge for access, you cannot decide your directory structures, or anything like that

    You absolutely control the content or access to it - by uploading it, or removing it. You can't "design" the pages, but you can alter their appearance (change the colors and whatnot). You can choose whether to place ads on it, or not. And most "hosts" don't allow you complete control over the file structure, either (mainly for security purposes).

    The exact same thing could be said for "file lockers." Most allow you to "control access" to your file (make it public or private, or even password-protected).

    On the other hand, by your definition, many webhosts would be considered "hosts" either. There were a lot of webhosts at the time (mainly the free ones) that wouldn't allow you to do anything but use their templates, and put ads on your site whether you wanted them or not.

    So, not only are you wrong about what Congress intended, you are wrong about how service providers work. Nicely done!

     

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  81.  
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    JackValenti'sRottingCorpse, Nov 8th, 2011 @ 12:17pm

    Re: Quick fix

    You're about 5 years late (and you say my studios are behind the times...)

    http://arstechnica.com/old/content/2005/11/5580.ars

     

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  82.  
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    Karl (profile), Nov 8th, 2011 @ 12:19pm

    Re: Re: Re: Re:

    by your definition, many webhosts would be considered "hosts" either.

    ...um, obviously I meant "many webhosts would not be considered 'hosts' either." Durr. Sorry.

     

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    Karl (profile), Nov 8th, 2011 @ 12:33pm

    Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    It certainly wasn't passed to create a legal loophole of separate link sites and file hosts to dodge copyright.

    No, it was passed to create legal safe harbors to link sites and file hosts, when those links and files were generated by automatic searches and/or users.

    In other words: it was designed to work exactly like it is working right now.

    What a cute elliptical evasion of the truth that they were engaged in stealing.

    As has been said before: copyright infringement is not stealing. They are two completely different things - both legally and ethically. (For one thing, the legal punishment for copyright infringement is much, much worse than the punishment for theft.)

    And when we're talking about people using sites like YouTube, "sharing music they love" is completely appropriate.

     

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  84.  
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    Squid Lips, Nov 8th, 2011 @ 12:47pm

    Re: Re: Re: Re: Gold Star~!

    I think the people that uploaded the vidz to u-toob should be making money of the advertisements. Anybody?

     

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  85.  
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    Anonymous Coward, Nov 8th, 2011 @ 12:51pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    "So is it your position that branded free hosting platforms like Blogger, Tumblr and Wordpress.com should all be liable for every user-created blog they host? Because that seems highly problematic."

    Again No, but with a little asterix.

    The issue for these sites is the anonymous nature of the users. blogger and sites like them are unable to show who the actual contributors are. They are trying to hang on the "innocent host" provisions, but are unable to show who is actually liable for the content.

    That is another part of the deal: If they could actually show who they were hosting for, the liability could be applied to the end users. Choosing to allow anonymous blog creation and uploading of materials puts them in a black hole.

    The cure for many of these services is to "know your customer", and be willing to provide that information in the case of legal action. Not being able to do this pretty much leaves them with all of the liablity.

     

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  86.  
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    Anonymous Coward, Nov 8th, 2011 @ 12:53pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    What planet are you on? You sign up for webhosting, they give you a blank wired box, with an OS, and other tools (like say database management, cpanel, etc). They don't enforce any choices in how you present your content, or how your sites are structured or presented.

    Please describe your "fully-stocked web-hosting suite", and try to remember that I have been at this for a very long time, since before you were born.

     

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    Marcus Carab (profile), Nov 8th, 2011 @ 12:59pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    There are plenty of comments here from me and others explaining why you are wrong. I see no real need to keep repeating it over and over.

     

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  88.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 1:00pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Wait... what?

    Blogger can't show who its contributors are but YouTube can? You realize they both use the exact same Google Accounts right?

    You've lost me here, sorry...

     

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  89.  
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    Anonymous Coward, Nov 8th, 2011 @ 1:18pm

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

    This sounds suspiciously similar in concept to the Too Big To Fail bs we heard about banks...

     

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  90.  
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    Anonymous Coward, Nov 8th, 2011 @ 1:21pm

    Re: Re: Re: Re:

    If you don't understand how simple concepts like fair use work, you shouldn't be posting here.

     

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  91.  
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    Anonymous Coward, Nov 8th, 2011 @ 1:25pm

    Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    Sorry, Supreme Court called it theft.

     

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  92.  
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    Anonymous Coward, Nov 8th, 2011 @ 1:26pm

    Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    The Supreme Court called it theft.

    Yes, it's infringement. It's also theft.

     

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    Anonymous Coward, Nov 8th, 2011 @ 1:30pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    I didn't make any claim on one or the other. Google accounts are meaningless, because they don't go anywhere. Unless you make it into a G+ account, there is no way that your information is somehow valid.

    I can create as many fake google accounts as I need to publish all sorts of crap on blogger, fill the site with offensive material, copyright violations, and all that, and there would be absolutely no way (except the dreaded IP address that you think is not sufficient) to track me down.

    End result? All posts are anonymous.

    Sorry if you cannot think past the end of your nose. Would you care to try again?

     

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  94.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 1:32pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    No, I just don't get your point at all. So okay - all posts are anonymous... thus what? Blogger should be liable for all blogs they host?

     

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  95.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 1:34pm

    Re: Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    The Supreme Court called it theft.

    er... when? Because all I remember is how they specifically called it NOT theft:

    "...interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright... 'an infringer of the copyright.'"

    - Dowling v. United States (1985)

     

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  96.  
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    Anonymous Coward, Nov 8th, 2011 @ 1:58pm

    Re: Re: Re: Re: Re:

    Whooooosh!!!
    That was Chosen Reject's point going way over your head.

     

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    Karl (profile), Nov 8th, 2011 @ 2:01pm

    Re: Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    Sorry, Supreme Court called it theft.

    Supreme Court explicitly said it was not theft:
    Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

    - Dowling v. United States

     

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    Chosen Reject (profile), Nov 8th, 2011 @ 2:21pm

    Re: Re: Re: Re: Re:

    Fair use isn't part of this issue. If I write a "review" of a vacuum on Amazon that is merely the entirety of The Lottery (under 4,000 words) and nothing else, their is no fair use defense, it is out and out copyright infringement. If I wrote a craigslist ad that consisted only of the scans of a Where the Wild Things Are along with the text of that story, there would be no fair use defense, it is out and out copyright infringement. But if we use the AC's definition of Service Provider, then both Amazon and Craigslist would be liable for that infringement, which is ridiculous.

     

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  99.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 2:42pm

    Re: Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    No they didn't, they said it isn't theft.

     

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  100.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 3:40pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    What makes you so certain the information in a G+ account is accurate? You do realize they don't ask for proof of identification, right?

     

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  101.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 3:44pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    I'm not saying it's accurate. I didn't bring up the issue of anonymity and I'm not entirely clear what it has to do with this debate anyway - I was just pointing out that, whatever he was saying about anonymity (still not sure what) must apply to both blogger AND youtube

     

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  102.  
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    Marcus Carab (profile), Nov 8th, 2011 @ 3:45pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    oh, i think i mis-read the reply thread, sorry... it's getting cramped over on this side of the page :)

     

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  103.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 3:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    Apparently the basic free-user template they designed years back.

     

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  104.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 3:59pm

    Re: Re: Re: Re: Re:

    Templates and all that stuff are not editorial decisions. They are not choices. They are options, nothing more.

    And that is what Youtube does. THank you.

     

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  105.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 4:02pm

    Anonymity and the slippery slope


    I'm not saying it's accurate. I didn't bring up the issue of anonymity and I'm not entirely clear what it has to do with this debate anyway - I was just
    pointing out that, whatever he was saying about anonymity (still not sure what) must apply to both blogger AND youtube





    What the other AC is trying to get at is anonymity itself.


    You can't enforce copyright law effectively against noncommercial file sharing without compromising the right of anonymity.

    If you tighten the DMCA's safe harbor, and narrow the definition of protected service provider, all pirates could switch to proxy providers.

    Paradoxically under AC's notion of the safe harbor, Youtube is not protected because it takes part in the editorial selection and modification of the uploaded content, but a proxy provider like BTGuard or a commercial Omemo service would still enjoy the safe harbor.



    A proxy provider doesn't store all trafick and has no part in editing the content sent from user to user.

    But now, you can be sure that the RIAA will argue that even a passive carrier of encrypted trafick should be liable for copyright violations unless he or she is able to identify the users.

     

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  106.  
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    Anonymous Coward, Nov 8th, 2011 @ 4:15pm

    Re: Re: Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    And 20 years later, speaking directly to the subject we are discussing,

    "deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft. See, e.g., 18 U. S. C. §2319 (criminal copyright infringement); §1961(1)(B) (copyright infringement can be a predicate act under the Racketeer Influenced and Corrupt Organizations Act); §1956(c)(7)"


    http://www.law.cornell.edu/supct/html/04-480.ZC1.html

     

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  107.  
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    Jay (profile), Nov 8th, 2011 @ 4:20pm

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

    "This sounds suspiciously similar in concept to the Too Big To Fail bs we heard about banks..."

    Uhm... WTF?

    Is there a point to this or are you just being contrarian?

     

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  108.  
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    Jay (profile), Nov 8th, 2011 @ 5:14pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    You do realize they don't ask for proof of identification, right

    Uhm... Google+ does require ID if they believe that you're not using your real name

     

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  109.  
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    Karl (profile), Nov 8th, 2011 @ 5:49pm

    Re: Re: Re: Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    And 20 years later, speaking directly to the subject we are discussing

    ...Breyer says it's "an unlawful taking of property." Not theft. The fact that it is compared with theft ("no less... than theft") shows that the two are distinct.

    In fact, it was probably a bad choice of words on Breyer's part, since none of the statutes he quotes actually call infringement "a taking of property," or the equivalent. Nor is he overturning, or even attempting to overturn, Dowling (which his statement, if taken literally, would do). A better choice of words would be "no less an unlawful activity."

    Also, that's not actually the opinion of the court; it's a concurring opinion. The actual opinion of the court (written by Souter) does not even mention the word "theft."

    And in Dowling, the entire issue was whether copyright infringement was theft. That was the sole issue the court had to decide. And they decided it was not.

    The Grokster sentence you're quoting, on the other hand, was a throwaway line in a concurring opinion, in a case that did not even consider whether infringement was theft. It did not even come close to "speaking directly" on that subject; it didn't touch that subject at all.

    So, no, sorry. The Supreme Court didn't change its mind. Copyright infringement is not theft.

     

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  110.  
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    Jamie (profile), Nov 8th, 2011 @ 7:13pm

    Re: Re: Re: Re: Re: Re: Re: Gold Star~!

    YouTube does not choose the content - the users who upload it do. No human at YouTube has any knowledge of the content of the video that was uploaded. Any processing that happens to it is fully automated, and requires no manual intervention.

    *THIS* is the reason why YouTube qualifies for safe harbor. They have no knowledge that the uploaded material is infringing. As long as they remove anything that's pointed out to them, they're safe.

    It doesn't matter how much automated processing YouTube does on the video, how they present the uploaded video, whether advertising was inserted by any means... The ONLY important thing is that nobody at YouTube knew that the video had infringing content.

    And you can't just say "YouTube should be able to automatically identify infringing content and stop it being shown." The human brain is incredibly good at pattern matching, a million miles beyond what any computer program can do at present. In other words, there is no 100% effective way to detect infringing content. Even 20% accuracy is pushing the envelope with current technology.

    Anonymous Coward: It is currently impossible for any site to prevent its users from uploading infringing content without having a human review *everything* that is uploaded. This requires hiring enough staff to review all of the content, which increases the costs to the business. Small start-ups may not be able to afford the additional costs, killing innovation. Existing companies would have to curtail user uploads if they could not afford to hire enough people to review everything at a reasonable pace, again killing innovation.

    Think of YouTube for a bit. With 48 hours of video being uploaded every second, they'd need to have roughly 172,800 reviewers active *every second of the day* in order to keep up. Assuming that each person works 8 hours a day, they'd need more than half a million reviewers on payroll. If each reviewer was paid $US10K a year, that would come to more than $US5,000,000,000. That's right: five billion US dollars a year, just paying for reviewers. Is it really fair to lump that cost onto YouTube?

     

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  111.  
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    B Pickel (profile), Nov 8th, 2011 @ 7:49pm

    Re: Re: Re: Re: Re:

    "A real host would allow you to upload files, and would serve those files when someone requests them, and nothing more"
    "just giving you storage and a net connection that you can work with"

    so a site hosting a torrent file (loaded by a user) is protected under your discription?

     

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  112.  
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    techflaws.org (profile), Nov 8th, 2011 @ 10:31pm

    Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    It's /your/ egregious mis-statements, Mike, that drive me to even minimally support the RIAA view

    And /who/ gives a crap about /you/?

     

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  113.  
    identicon
    Anonymous Coward, Nov 8th, 2011 @ 11:01pm

    Re: Re:

    Let's be clear that most of the time it's not the artists seeking this type of thing. Many, Many artists have been swindled by shady dealings in the music industry. That being said you're right on the account of the MAFIAA.

     

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  114.  
    identicon
    owtofthebox, Nov 9th, 2011 @ 1:33am

    G. Bankers make money from money, now entertainment industry makes intellectual property from intellectual property. This is an extension of the most anti-productive crap to hit the world like a Hadron Collider induced time warp. DMCA is the most seriously f***ed up sh*t since it's sponsor declared fellatio to be not a sexual act:(???

     

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  115.  
    identicon
    , Nov 9th, 2011 @ 2:31am

    Not classifying Youtube as a service provider protected by the safe harbour means if I upload an infringing video, they can be shut down. In what world does that make sense? That'd make it impossible to have any user-provided content that isn't thoroughly examined by moderators before being published, which would just take far too many resources to be at all feasible.

     

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  116.  
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    Richard (profile), Nov 9th, 2011 @ 5:19am

    Re: Re: Re:

    If your argument was taken seriously then Youtube as we know it would be shut down.

    I don't think the public would tolerate that - and the likely result would be a major reform of copyright law in ways you would greatly dislike.

    Be careful what you wish for.

     

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  117.  
    identicon
    Anonymous Coward, Nov 9th, 2011 @ 12:01pm

    Re: Re: Re: Re: Re: Re: DMCA /wasn't/ intended for symbiotic copyright infringement.

    Awesome bitch slap Karl :)
    I don't expect AC will bother to reply and humiliate himself further.

     

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

  118.  
    identicon
    Anonymous Coward, Nov 9th, 2011 @ 12:20pm

    Re:

    That's what they want. They don't want any legitimate user generated content to compete against. They want thier crap to be the only option.

     

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  119.  
    identicon
    horrible, Dec 2nd, 2011 @ 11:54am

    these industry people have gone BEYOND troll logic with themselves.

     

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


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