Viacom Filing Attempts To Rewrite DMCA, Shift Burden Of Proof, Wipe Out Safe Harbors And Require Mandatory Filtering

from the are-they-serious? dept

It's been about a year since the 2nd Circuit appeals court sent the Viacom v. YouTube case back to the district court. As we noted at the time, the original district court ruling, which said YouTube was protected by the DMCA's safe harbors, was a good ruling, well reasoned and argued by the court. In contrast, the appeals court ruling dipped into very troubling waters. While it agreed with the district court that YouTube needed "specific" knowledge of infringing works, rather than "general" knowledge that some works were infringing, it also went into questionable territory by arguing that YouTube could be found guilty of "willful blindness," despite the DMCA statute not including any such concept and also being pretty clear that you need specific knowledge in the form of a DMCA-compliant notification.

On Friday, the latest set of (slightly redacted) filings in the case back at the district court were revealed. They were filed in the past few months, but sensitive info was finally redacted and the "public" copies have now been released. Google has, not surprisingly, basically asked the court to reiterate its original ruling, noting that even following the appeals court sending it back, the situation hasn't changed: YouTube obeyed the DMCA's notice-and-takedown procedures and is protected under the DMCA's 512(c) safe harbors (pdf). Google highlights how YouTube has followed notice-and-takedown procedures from early on, and even in the early days blocked some videos that it thought might be infringing. It also notes that Viacom itself pulled a bunch of videos from the lawsuit after it finally signed up to use ContentID and realized that it was beneficial to Viacom's own business. More importantly, as we've pointed out a bunch of times, many videos had to be removed from the case because Viacom had uploaded them itself and even had "confidential (and ever changing) instructions to its copyright-monitoring agent" concerning what to pull off of YouTube. Even worse, apparently, even today, Viacom hasn't fully figured out if all of the clips they're suing over were really infringing. It turns out that many of them are identical to the ones that Viacom itself uploaded as authorized copies (and there's evidence Viacom often uploaded the same clips multiple times itself on purpose).

The basic point: there's no way for Google to know what Viacom uploaded on purpose and what is unauthorized unless it receives direct notification about it. Just like the DMCA safe harbors require. Not only that, but they show that Viacom knew this as fact. First, Viacom tried to buy YouTube itself, and internal memos from Viacom execs noted that "user generated content appears to be what's driving" YouTube's success and even that "consumption of branded content on YT is low." They also specifically stated that YouTube "has many" non-infringing uses.

As for the specific issues raised by the appeals court, YouTube points out that for "willful blindness" to apply, Viacom needs to show that specific clips in this lawsuit were involved in cases where there is evidence of willful blindness by YouTube. That's because the lawsuit is just about those particular clips. If Viacom wants to go after a general willful blindness on the part of YouTube, that's way beyond what the law allows -- and the court is specific about this, noting that Viacom needs to show willful blindness to specific infringements concerning videos in the lawsuit.

But, of course, Viacom doesn't bother to show a single piece of evidence alleging willful blindness by YouTube in regards to any one of the clips in the lawsuit. Instead, in its opposition filing it once again tries to rewrite the law in its favor, trying to create a ridiculously broad general "willful blindness" standard that effectively wipes out the DMCA's 512(c) safe harbors. First, it relies almost entirely on an email sent by an ex-employee of YouTube, in which he claims there is a lot of infringement on the site, but does not name any specific videos. As Google points out, just having someone say there's infringing works on YouTube doesn't (a) show what files need to be removed or (b) even prove the works are actually infringing (see: Viacom uploading its own videos) or, most importantly (c) prove that YouTube failed to remove infringing videos when it learned they were infringing. Viacom doesn't even seem to try to show any of those things. Also, the fact that the email came from an ex-employee certainly doesn't prove that YouTube had knowledge of the specific infringements.

As the filing notes:
The type of generalized guesswork that Viacom engages in bears no resemblance to the showing of specific knowledge of clips-in-suit that the Second Circuit demanded.
In fact, Viacom's filing is really incredible. Having completely lost (at both district and appeals court levels) its ridiculous claim that "general knowledge" of some infringement somewhere on the site leads one to lose safe harbors, Viacom simply tries the same argument again, pretending that the "willful blindness" standard is basically a stand-in for "general knowledge." That's hogwash on many levels, and frankly, I'm surprised that Viacom's pricey lawyers would bother with that argument. The district court already rejected it and the appeals court was pretty clear that Viacom needed to show willful blindness on specific items, not generally.

It also tries to completely flip the burden of proof, arguing that as long as Viacom can show that infringing works were on the site, YouTube has to show that they "lacked such knowledge or awareness of Viacom's clips-in-suit." That's not how the law works. Viacom is actually arguing that the DMCA requires proving the negative. Furthermore, it argues that YouTube's failure to implement an anti-piracy filter that Viacom wanted is more proof of willful blindness. That's similarly ridiculous. The DMCA has been held, repeatedly, to not include a proactive duty to monitor. Failing to do so at the insistence of Viacom (even as YouTube was establishing its own filter anyway) is hardly proof of willful blindness to the infringement of specific clips (and given Viacom's "dizzying array" of authorized videos on the site, such a filter would hardly prove infringement). Incredibly, Viacom insists that it's YouTube trying to flip the burdens in the DMCA, but either Viacom's lawyers have totally misread... um... everything, or they're lying to the court.

They're correct that to get safe harbors the service provider needs to meet certain "burdens," but those are laid out in 512(c). It needs to be a service provider that does not have actual knowledge and when it gets the knowledge, it acts expeditiously to remove or disable access to the material. Those are pretty clearly laid out. Viacom is making things up pretending that the burden also includes the idea that if a copyright holder claims its works are there then the burden shifts to the service provider to prove the negative that it wasn't willfully blind to infringement. Viacom literally argues:
It is not Viacom's burden to prove specific knowledge or awareness. That factual issue is relevant only to the affirmative defense that YouTube is asserting; knowledge of specific infringements is not an element of Viacom's copyright infringement claims against YouTube. At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability.
Got that? Stuff on the site, plus "some other elements" and boom, no more safe harbors. That's crazy. That's clearly not the purpose of the safe harbors, because that would mean there are no DMCA safe harbors.

As YouTube noted in response:
Viacom does not even try to make the showing of clip-specific knowledge required by the Second Circuit’s ruling. It instead reverses course and claims that it is YouTube’s burden to affirmatively establish its lack of knowledge as to each specific clip-in-suit. Viacom’s novel burden-shifting argument is wrong. It is contrary to the Second Circuit’s decision, all the case law, and the structure of the DMCA itself. Viacom also ignores the record. YouTube has identified more than sufficient evidence of its lack of knowledge of infringement— including the very fact that the voluminous record in this case contains no evidence of such knowledge. Viacom’s inability to offer any evidence from which a jury could find that YouTube had actual or red-flag knowledge of even a single clip-in-suit requires that summary judgment be entered in YouTube’s favor.
Viacom goes on to argue that even though the DMCA is explicit (in 512(m)) that there is no duty to monitor, there really is a duty to monitor! How do they tap dance into that position? By arguing that while there's officially no duty to monitor, if you fail to monitor because it might show you infringing works, then you are guilty of willful blindness. Got that? There's no duty to monitor, but failing to monitor shows that you were making yourself willfully blind. If that's true, then 512(m) makes no sense, which is what Viacom (and other copyright maximalists) have always wanted (in fact, we noted just this three years ago about this case). They want a requirement for others to be their personal copyright cops and 512m gets in the way of that, so Viacom is trying to rewrite it here. In doing this, it relies heavily on the ruling in the Tiffany v. Ebay case -- but that's a very different story, involving trademark (for which the safe harbors don't apply), not copyright.

Viacom also regularly cites shows like South Park, the Daily Show and others despite the fact that Viacom explicitly (in its "rules" sent to BayTSP, its DMCA monitor) had many, if not most, of those clips left on the site as authorized.

There are a few other points up for debate -- concerning things like whether or not YouTube got financial benefits directly from infringement, whether or not reformatting YouTube videos for smartphones removes safe harbors and a few small other points that we won't get into here. Those are unlikely (hopefully) to be the center stage issue, and this post is long enough as is. Frankly, I remain surprised that Viacom's arguments seem so obviously weak. Ever since the case began, I've been surprised at how weak Viacom's arguments are. From the beginning, I expected them to have a stronger lawsuit. Having read the latest filings, it really feels like Viacom went all in early, and rather than admit it never had the goods, it's just going to try crazier and crazier arguments and hope that a court gets confused. Seems like a good way to completely throw away money.

Anyway, if you feel like digging into the three filings (YouTube's motion for summary judgment, Viacom's opposition and YouTube's reply), they're all embedded below for your reading pleasure.






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    Rikuo (profile), Apr 1st, 2013 @ 5:11am

    "and this post is long enough as is"

    Anyone want to bet that this will be the line the trolls use to start complaining on how they're far too dumb to read just a few paragraphs?

    Well that, and they will of course side with Viacom. Not because Viacom is somehow in the right. Not because Youtube is somehow in the wrong. No, they'll come in guns blazing, all because they want to oppose the Evil Overlord, Mike Masnick. If Mike were to publish an article one day with nothing but cold hard facts, such as why the sky is blue, they'd still find fault with it.

     

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      Designerfx (profile), Apr 1st, 2013 @ 6:07am

      Re:

      Heh, I believe that would be news if it were 2001. It's as much of a sign of Mike being correct in his analysis that trolls are getting noisier and noisier as of lately, while resorting to mostly ad-hominem comments.

       

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    Anonymous Coward, Apr 1st, 2013 @ 6:03am

    Mike, I'll ask you the same thing I've asked you in the past which you, of course, have never answer. Please explain exactly what red flag knowledge is.

     

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      Anonymous Coward, Apr 1st, 2013 @ 6:19am

      Re:

      That clause shouldn't even be in the law, as it's so far beyond vague that it's impossible to define precisely to a legal standard. And legalities should be exacting, otherwise they're open to abuse (see, for example, the "bad faith" clause of the same Act of Congress).

      Get that sorted, then we can discuss that in a more open manner than the US Government by Viacom.

       

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        Anonymous Coward, Apr 1st, 2013 @ 6:27am

        Re: Re:

        That clause shouldn't even be in the law, as it's so far beyond vague that it's impossible to define precisely to a legal standard.

        But it is the law, so you can't ignore it. IIRC (it's been a while since I've read the opinion), the Second Circuit explained above that actual knowledge is a subjective standard, while red flag knowledge is an objective standard. In other words, actual knowledge is what you actually knew, and red flag knowledge is what you should have known. Both require knowledge of specific infringements. Red flag knowledge is where willful blindness comes in--you can't claim that you didn't know something because you went out of your way not to learn about it when you had reason to suspect it was there.

         

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          Anonymous Coward, Apr 1st, 2013 @ 6:31am

          Re: Re: Re:

          Red flag knowledge has to be provied by the copyright holder.

           

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          Rikuo (profile), Apr 1st, 2013 @ 6:41am

          Re: Re: Re:

          "Red flag knowledge is where willful blindness comes in--you can't claim that you didn't know something because you went out of your way not to learn about it when you had reason to suspect it was there."

          If I recall correctly, wasn't Viacom saying that Youtube should have known that certain videos were infringing based on COMMENTS on the video's page? Yeah, like that somehow works. How would Youtube be able to pay enough employees to monitor the comments page of every video it has? (And more importantly, WHY?

           

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          Anonymous Coward, Apr 1st, 2013 @ 6:49am

          Re: Re: Re:

          72 hours of video are uploaded to YouTube every minute. You can assume that some of that is infringing while having no way to find it. You can not employee enough people to watch everything as it comes in and then call the applicable rights holder to see if it is authorized if you find something copyrighted.

          Until Google finds a way to work outside the restraints of time and physics they have to rely on people reporting the content. Because not watching 72 hours of footage every minute is not going out of your way not to find it.

           

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            Rikuo (profile), Apr 1st, 2013 @ 6:55am

            Re: Re: Re: Re:

            "then call the applicable rights holder to see if it is authorized if you find something copyrighted. "

            You forgot one step. In that situation, Google would somehow have to find out WHO the applicable rights holder is. What if someone uploads a video but has carefully ripped out the credits and all distinguishing features?
            Which is yet another example of how copyright law cannot co-exist peacefully with the digital age. In the past, there was a finite, relatively small pool of people able to publish works. So if someone actually had to by law find out who the rights holder was, then the process would be relatively simple, compared to how the real world is, where EVERYONE is a publisher.

             

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              Anonymous Coward, Apr 1st, 2013 @ 10:49am

              Re: Re: Re: Re: Re:

              Except the whole story isn't being told in the above article (surprise, surprise).

              YouTube HAD a report function and pulled it. MULTIPLE emails show they knew the majority of their traffic was infringing, and that to address that meant lowering their site traffic, and thus, their income.

              This is of course about money.

              These weren't just emails from lowly "ex-employees" but from the head honchos themselves.

              While YT might be a reasonably good-faithed actor now, there is little doubt that would have happened had the Viacom lawsuit not forced them to be such.

              The level of intellectual dishonesty in the above article would normally be shocking; except this is Techdirt, where one has expected everything to be dishonest.

               

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                Rikuo (profile), Apr 1st, 2013 @ 11:01am

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

                "YouTube HAD a report function and pulled it. MULTIPLE emails show they knew the majority of their traffic was infringing, and that to address that meant lowering their site traffic, and thus, their income."

                After reading that, I opened a random video. Guess what I saw? That's right, THE REPORT BUTTON! With the option to say "It infringes on my copyrights"

                Intellectual dishonesty? Fuck you.

                 

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                  Anonymous Coward, Apr 1st, 2013 @ 11:20am

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

                  And when was that finally reinstated? Fucking idiot...

                   

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                    Anonymous Coward, Apr 1st, 2013 @ 11:51am

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

                    I love how you think the UI design is some kind of smoking gun.

                     

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                    Designerfx (profile), Apr 1st, 2013 @ 12:34pm

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

                    point is, you just made the false claim, and rikuo called you on it.

                     

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                      Anonymous Coward, Apr 1st, 2013 @ 1:32pm

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

                      No.

                      How about you read up on the case before talking like a moron?

                      From Fastcompany.com:
                      By Kit Eaton
                      March 18, 2010


                      • In a February 11, 2005 email to YouTube cofounders Chad Hurley and Steve Chen, with the subject "aiming high," YouTube cofounder Jawed Karim wrote that, in terms of "the number of users and popularity," he wanted to "finnly place [YouTube] among" "napster," "kazaa," and "bittorrent."

                      • In an April 23, 2005 email to YouTube cofounders Steve Chen and Chad Hurley, YouTube co-founder Jawed Karim wrote: "It's all 'bout da videos, yo. We'll be an excellent acquisition target once we're huge."

                      • In an April 25, 2005 email to YouTube cofounders Steve Chen and Jawed Karim, YouTube co-founder Chad Hurley noted the presence of a "South Park" clip on YouTube and questioned whether it should be left on the site because "its [sic] copyrighted material."

                      • In a June 15, 2005 email to YouTube cofounders Chad Hurley and YouTube cofounder Jawed Karim, YouTube co-founder Steve Chen stated "we got a complaint from someone that we were violating their user agreement. i *think* it may be because we're hosting copyrighted content. instead of taking it down - i'm not about to take down content because our ISP is giving us shit - we should just investigate moving www.youtube.com...

                      • In a June 15, 2005 email to YouTube co-founders Steve Chen and Jawed Karim, YouTube co-founders Chad Hurley stated: "So, a way to avoid the copyright bastards might be to remove the 'No copyrighted or obscene material' lìne and let the users moderate the videos themselves. legally, this wì1 probably be better for us, as we'll make the case we can't review all videos and tell them if they're concerned they have the tools to do it themselves."

                      • In a June 20, 2005 email to YouTube co-founders Chad Hurley and Steve Chen, YouTube co-founder Jawed Karim wrote: "If we want to sign up lots of users who keep coming back, we have to target the people who will never upload a video in their life. And those are really valuable because they spend time watching. And if they watch, then it's just like TV, which means lots of value."

                      • On June 21, 2005, YouTube co-founder Jawed Hohengarten, Karim stated in an email to YouTube co-founders Chad Hurley and Steve Chen that "Where our value comes in is USERS.... [O]ur buy-out value is positively affected by ... more Youtube users.... The only thing we have control over is users. We must build features that sign up tons of users, and keep them coming back."

                      • On July 4, 2005, YouTube co-founder Chad Hohengarten Hurley sent an email to YouTube co-founders Steve Chen and Jawed Karim titled "budlight commercials," stating "we need to reject these Hohengarten too" Steve Chen responded by asking to "leave these in a bit longer? another week or two can't hurt;" Jawed Karim subsequently stated that he "added back all 28 bud videos. stupid...," and Steve Chen replied: "okay first, regardless of the video they upload, people are going to be telling people about the site, therefore making it viraL. they're going to drive traffic. second, it adds more content to the site. third, we're going to be adding advertisements in the future so this gets them used to it. I'm asking for a couple more weeks."

                      • In a July 10, 2005 email to YouTube co-founders Chad Hurley and Steve Chen, YouTube co-founder Jawed Karim reported that he had found a "copyright video" and stated: "Ordinarily I'd say reject it, but I agree with Steve, let's ease up on our strict policies for now. So let's just leave copyrighted stuff there if it' s news clips. I still think we should reject some other things tho. . ."; Chad Hurley replied, "ok man, save your meal money for some lawsuits! ;) no really, I guess we'll just see what happens."

                      • In a July 10, 2005 email to YouTube founders Jawed Karim and Steve Chen, YouTube co-founder Chad Hurley wrote: "yup, we need views. I'm a little concerned with the recent supreme court ruling on copyrighted material though."

                      • In a July 19, 2005 email to YouTube co-founders Chad Hurley and Jawed Karim, YouTube co-founder Steve Chen wrote: "jawed, please stop putting stolen videos on the site. We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealìng content from other sites and trying to get everyone to see it."

                      • On July 19, 2005, YouTube co-founder Steve Chen sent an email to YouTube co-founder Jawed Karim, copying YouTube co-founder Chad Hurley, stating "why don't i just put up 20 videos of pornography and obviously copyrighted materials and then link them from the front page. what were you thinking."

                      • On July 22, 2005, YouTube co-founder Steve Chen forwarded to all YouTube employees "YouTube Marketing Analysis" stating that "users not only upload their own work, but can potentially upload publìcly available content for viewing. Risk area here is copyright as many videos which are uploaded are not the property of the uploader.... Although the polìcy when uploading states that the video must be legit, YouTube may be liable for any damages which copyright holders may press."

                      • In a July 23, 2005 email to YouTube co-founders Steve Chen and Jawed Karim, YouTube co-founder Chad Hurley responded to a YouTube link sent by Jawed Karim by saying: "if we reject this, we need to reject all the other copyrighted ones.... should we just develop a flagging system for a future push?"; Karim responded: "I say we reject this one, but not the other ones. This one is totally blatant."

                      • In a July 29, 2005 email about competing video websites, YouTube co-founder Steve Chen wrote to YouTube co-founders Chad Hurley and Jawed Karim, "steal it!", and Chad Hurley responded: "hmm, steal the movies?" Steve Chen replìed: "we have to keep in mind that we need to attract traffic. how much traffic will we get from personal videos? remember, the only reason why our traffic surged was due to a video of this type.... viral videos will tend to be THOSE type of videos."

                      • In an August 9, 2005 email to YouTube co-founders Steve Chen and Jawed Karim, YouTube co-founder Chad Hurley stated: "we need to start being diligent about rejecting copyrighted/inappropriate content. we are getting serious traffic and attention now, I don't want this to be killed by a potentially bad experience of a network exec or someone visiting us. like there is a cnn clip of the shuttle clip on the site today, if the boys from Turner would come to the site, they might be pissed? these guys are the ones that will buy us for big money, so lets make them happy. we can then roll a lot of this work into a flagging system soon."

                      • In response to YouTube co-founder Chad Hurley's August 9, 2005 email, YouTube co-founder Steve Chen stated: "but we should just keep that stuff on the site. I really don't see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he get in touch with cnn legaL. 2 weeks later, we get a cease & desist letter. we take the video down"; Chad Hurley replied: I just don't want to create a bad vibe... and perhaps give the users or the press something bad to write about."

                      • On August 10, 2005, YouTube co-founder J awed Karim responded to YouTube cofounder Chad Hurley: "lets remove stufflike movies/tv shows. lets keep short news clips for now. we can become stricter over time, just not overnight. like the CNN space shuttle clip, I like. we can remove it once we're bigger and better known, but for now that clip is fine." Steve Chen replìed, "sounds good."

                      • On September 3, 2005, YouTube co-founder Steve Chen stated in response to YouTube co-founder Jawed Karim's "really lax" policy: "yes, then i agree with you. take down whole movies, take down entire TV shows, take down XXX stuff. everything else. keep including sports, commercials, news, etc. keeping it, we improve video uploads, videos viewed, and user registrations"; Chad Hurley replied: "lets just work in that flagging feature soon. . . then we won't be lìable."

                       

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                Rikuo (profile), Apr 1st, 2013 @ 11:09am

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

                "he level of intellectual dishonesty in the above article would normally be shocking; except this is Techdirt, where one has expected everything to be dishonest."

                Given your habit of absolute sentences, do you include yourself as being dishonest?

                 

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                Anonymous Coward, Apr 1st, 2013 @ 11:32am

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

                Where does the DMCA require a "report button?"

                 

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                Anonymous Coward, Apr 1st, 2013 @ 11:50am

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

                There's a difference between knowing that a portion of your traffic is likely to be infringing and having specific knowledge of infringing traffic.

                 

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          Anonymous Coward, Apr 1st, 2013 @ 7:50am

          Re: Re: Re:

          But it is the law, so you can't ignore it.


          They can't ignore it in that they have to address arguments that reference that portion of the law but the courts are free to never find anything constitutes red flag knowledge which is, in practice, the same thing as ignoring it.

           

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        Mike Masnick (profile), Apr 1st, 2013 @ 7:40am

        Re: Re:

        That clause shouldn't even be in the law, as it's so far beyond vague that it's impossible to define precisely to a legal standard. And legalities should be exacting, otherwise they're open to abuse (see, for example, the "bad faith" clause of the same Act of Congress).

        This is true, but even considering that it is kept in the law, the 2nd Circuit says that the red flags need to be in regards to specific knowledge of clips in the suit -- something Viacom has failed to show.

        That is, it is Viacom's burden to highlight how YouTube knew (a) that specific clips in their list of clips were (b) not authorized, (c) infringing (because not all non-authorized clips are infringing) and then (d) that YouTube did nothing about them.

        Viacom shows none of that, incredibly. So even if we have red flag knowledge, Viacom's argument fails.

         

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      Anonymous Coward, Apr 1st, 2013 @ 6:29am

      Re:

      Red Flag knowledge is what you need to have when playing for the Blue team. More precisely, you need to know that the Red Flag:

      A) Looks like a flag
      B) Is red
      C) Is located IN the enemy base

      Also, you should know that that you'll get a lot of flak (or rockets, or bullets, or...) coming your way if you have the flag, therefore, you should run LIKE your ass is on fire (as opposed to running WHEN your ass is on fire, in which case, you're probably already too late to start running) towards your base.

      Red Flag Knowledge is not essential when playing for the red team. When playing for the red team, all you need to know about the red flag is that you should shoot anything that looks blue (or acts blue...goddamned spies) and that gets too close to it.

       

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      Anonymous Coward, Apr 1st, 2013 @ 6:46am

      Re:

      Isn't it something so blatantly obvious that everyone should know that something is wrong/illegal/etc.?

       

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      Sheogorath (profile), Apr 1st, 2013 @ 7:54am

      Re:

      Well, since Google seems to be broken for you today: One of these conditions is “red flag” knowledge, a situation where it is obvious that the service provider is assisting people in pirating copyrighted material.
      Info found at http://torrentfreak.com/mpaa-red-flag-makes-hotfile-liable-for-pirate-users-130329/

       

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      Anonymous Coward, Apr 1st, 2013 @ 8:19am

      Re:

      Google is your friend... or maybe you use Altavista?

       

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    Anonymous Coward, Apr 1st, 2013 @ 6:16am

    In doing this, it relies heavily on the ruling in the Tiffany v. Ebay case -- but that's a very different story, involving trademark (for which the safe harbors don't apply), not copyright.

    If Toffany v. eBay was focused on 'willful blindness', then the fact that one id trademark and the other copyright really has no bearing. If you can potentially be held liable for willful blindness where there is no safe harbor, was does the existence of a safe harbor change that?

     

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      Anonymous Coward, Apr 1st, 2013 @ 6:28am

      Re:

      That's right. Mike's not good at analogies. That there's no safe harbors in trademark is irrelevant since the discussion is about knowledge.

       

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        Anonymous Coward, Apr 1st, 2013 @ 8:19am

        Re: Re:

        And this "red flag" is a red herring. If I point you to a crack house, and that house is subsequently closed down, are you suddenly liable for any civilly-prosecuted actions taking place there, as you have "red-flag" knowledge that the house is there?

         

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      identicon
      Anonymous Coward, Apr 1st, 2013 @ 7:55am

      Re:

      Because the safe harbor can apply in a case where it exists? This isn't rocket science.

       

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    •  
      identicon
      Anonymous Coward, Apr 2nd, 2013 @ 6:34am

      Re:

      You're arguing outside the discussion. That particular quote was about the requirement to monitor. Taking out of context to make a point... Isn't that yet another fallacy that will get you dinged in debate class?

       

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    Anonymous Coward, Apr 1st, 2013 @ 6:21am

    There are a few other points up for debate -- concerning things like whether or not YouTube got financial benefits directly from infringement, whether or not reformatting YouTube videos for smartphones removes safe harbors and a few small other points that we won't get into here.

    I think that reformatting is going to be a problem for them.. If they've manipulated the data, that is more than simply having it appear on their site. Also, profiting from infringement will weigh against them on the willful blindness issue.

     

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      Rikuo (profile), Apr 1st, 2013 @ 6:25am

      Re:

      How? It's not like a person at Youtube is actually VIEWING the video and checking to see if its infringing. All that's happening is they have automatic algorithms re-encoding their videos for better display on a smartphone.

      So go on. Tell me how re-encoding a video is somehow supposed to lead one to know if its infringing on copyright.

       

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      Anonymous Coward, Apr 1st, 2013 @ 6:30am

      Re:

      I think that reformatting is going to be a problem for them.

      I disagree. That argument has lost before and I think it will lose again. Automatically reformatting things to make them more accessible doesn't remove the 512(c) safe harbor.

       

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      Anonymous Coward, Apr 1st, 2013 @ 6:30am

      Re:

      "I think that reformatting is going to be a problem for them.. If they've manipulated the data, that is more than simply having it appear on their site."

      The reformatting is probably automatic, a simple coded action resizing the file without actually watching it (similar to the code that automatically-creates thumbnail images for display).

       

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      Josh in CharlotteNC (profile), Apr 1st, 2013 @ 7:14am

      Re:

      Why would reformatting a video be a problem? As others have pointed out, its an entirely automated process that can apply equally to both legitimate and infringing content, without anyone specifically choosing which videos to convert.

      But beyond that, format shifting is legal (the only time it isn't is if you ahve to break DRM, and that isn't in play here). If the video is not infringing, Youtube is free to convert it however they want. And Viacom has been unable to show even the tiniest bit of evidence of Youtube having specific knowledge of infringement on the videos involved in this case. If they could show evidence, then they would have.

       

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      identicon
      Anonymous Coward, Apr 1st, 2013 @ 8:01am

      Re:

      Not sure if serious on the reformatting issue. You're not seriously arguing that if I view an infringing video on youtube and switch from 1080p to 720p to 480p to 360p to 240p then back to 360p that youtube and I have commited 6 minimum 5 instances of infringement because I was trying to find the bit-rate I could use to watch without having the video stop to buffer, are you?

      I don't see how if they made a profit from it or not has any baring what-so-ever on willful blindness at all. The only pseudo-logic I can think of that might make you say that is earning profit alone is evidence that material is infringing and therefor the profit making contributes to their knowledge but that's fucking crazy.

       

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    That Anonymous Coward (profile), Apr 1st, 2013 @ 6:27am

    but but but they make all of this money, so they should be forced to spend their profits to protect our content.

    This really is the problem with copyrights longer than the human lifespan, there is no incentive to the rightsholders to answer market demands and solve their own problems.
    They just keep shifting all of the hard/costly parts of being a rightholder onto everyone else and then demand to be able to extract more from them because their content is so valuable it just creates money.

     

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      Rikuo (profile), Apr 1st, 2013 @ 6:39am

      Re:

      Precisely. That is the one thing the copyright maximilists keep forgetting about the digital age. It's not enough that you created the content. You also have to provide access to it, in a way that satisfies both you and your customers. Which is why I don't see anything wrong with paying for cyberlockers. They're charging me for access to their servers, which is a service that the copyright industry has yet to provide. I don't want to pay for Netflix or any other services like that because the service and the catalog sucks.

       

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      • This comment has been flagged by the community. Click here to show it
         
        identicon
        out_of_the_blue, Apr 1st, 2013 @ 7:12am

        Re: Re: @ "Rikuo" - "Which is why I don't see anything wrong with paying for cyberlockers."

        By which you clearly mean you're knowingly paying for faster downloads of illegal infringing content which is hosted on cyberlockers.

         

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          Rikuo (profile), Apr 1st, 2013 @ 7:21am

          Re: Re: Re: @ "Rikuo" - "Which is why I don't see anything wrong with paying for cyberlockers."

          And that content I cannot get through legal means. One Piece? Can't get it here in Ireland, as the DVDs aren't sold here (and I mean most of, if not, the entire series) and its not available on Crunchyroll. For me to stay legal, I would have to go out of my way and commit what could arguably be fraud by setting up a US account and figuring out a way to rout payments through a US bank...or paying over the nose for imported NTSC DVDs which by the way won't work on my PAL DVD players (unless I change the region on them which by the way I can only do a finite number of times, so then I'd have to go out and buy a separate DVD player JUST for imported DVDs. Yeah...like I'd do that).

          Oh and that's if you completely ignore the fact that optical media are dying. I honestly can't remember the last time I watched a video file on DVD.

           

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            Rikuo (profile), Apr 1st, 2013 @ 7:26am

            Re: Re: Re: Re: @ "Rikuo" - "Which is why I don't see anything wrong with paying for cyberlockers."

            Oops. Ended too early.

            That's what I hate by copyright law. In order to stay legal, I have to jump through an incredible number of hoops when the technology is already there for one click downloads. Its your job to figure out how to monetise it.
            All you guys have to do is allow Netflix to add more shows to its catalog. The Irish catalog is pitifully small. Since 99.9% of people are not like me and don't want to invest in lots of hard drives, then they will want to stream their video content. You can provide that service through Netflix. Give ALL of your content to Netflix but don't just end there. You've got to continuously create new content, no dumping a show there, extracting payments for the next 15 decades and doing nothing else.

             

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              AB (profile), Apr 1st, 2013 @ 8:42am

              Re: Re: Re: Re: Re: @ "Rikuo" - "Which is why I don't see anything wrong with paying for cyberlockers."

              " You've got to continuously create new content, no dumping a show there, extracting payments for the next 15 decades and doing nothing else."

              Exactly. I have no objection to kids benefiting from their parents hard work, but that does not give them the right to continue leaching even after said parent is dead. Copyrights that exceed a lifespan are so far beyond reasonable as to be a joke.

              Yet policy makers continue to willfully ignore the wishes of their constituents.

               

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          Sheogorath (profile), Apr 1st, 2013 @ 8:10am

          Re: Re: Re: @ "Rikuo" - "Which is why I don't see anything wrong with paying for cyberlockers."

          So if I uploaded copies of the original stories I've written to a cyberlocker, that automatically makes me a 'pirate', does it? And how does one, exactly, infringe one's own copyright?

           

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            Rikuo (profile), Apr 1st, 2013 @ 8:13am

            Re: Re: Re: Re: @ "Rikuo" - "Which is why I don't see anything wrong with paying for cyberlockers."

            No, only Big Copyright can create content that is worth viewing. There is no such thing as user-generated content, the only content that is on cyberlockers is infringing, and thus, if you pay for a cyberlocker account, you are obviously a dirty evil copyright infringer.

            /sarcmarc

             

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            identicon
            Anonymous Coward, Apr 1st, 2013 @ 9:53am

            Re: Re: Re: Re: @ "Rikuo" - "Which is why I don't see anything wrong with paying for cyberlockers."

            And how does one, exactly, infringe one's own copyright?

            By self publishing you are depriving the relevant publisher, including labels and studios, of their cut of your income. Copyright is something you should sell to a publisher, label or studio.
            /s

             

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      identicon
      Ed C., Apr 1st, 2013 @ 7:31am

      Re:

      And that is the problem with media companies, they just want to be paid for merely owning the content. They want all of the rights but none of the expense. The production, distribution and advertizing cost are all ultimately beared by the creators and/or 3rd party service providers, which also are increasingly being forced to bear the cost of enforcing those rights as well.

       

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    identicon
    Ed C., Apr 1st, 2013 @ 6:34am

    It's obvious the media companies never liked the "safe harbor" provisions and were trying to get them removed before the ink was even dry. That is, and always has been, their legal strategy: pretend the law says whatever they want it to say in hopes they get some judge to set a law-bending precedent in their favor, then siting it as "proof" the law agrees with them and that the law needs to be changed to agree with them, while bribing politicians and planting crony bureaucrats to actually change the law to agree with them. They will continue this cycle for as long as it takes, for decades even, until they get the law to say whatever they want. And when they finally get it...it's not enough! The law inevitably fails to accomplish what they want, so they go right back and start the cycle over again.

     

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      identicon
      Anonymous Coward, Apr 1st, 2013 @ 7:16am

      Re:

      The media companies do not like any copying or distribution technology that they cannot control. Further if they had their way, their content would only be available at cinemas or other pay per view or listen basis, where you get to enjoy their content at a time and place of their choosing, at the price they want for the performance.

       

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      •  
        identicon
        Ed C., Apr 1st, 2013 @ 8:01am

        Re: Re:

        And for all of eternity, minus and day. If given the chance, I'm sure they would like to get that day as well. No sense in losing sleep over the mere possibility that some distant day, generations from now, that they won't be able to charge money for simply accessing, or even talking about, their content. Of course, that would require a constitutional amendment, but then they'd just take the opportunity to shred other inconvenient rights--like the right to privacy from search and seizure. That way, they could have the FBI sack random houses, Gestapo style, in search of dirty "pirates". They already tried to claim infringement was somehow linked to terrorism, which, if they had succeeded, would have given them the right to do just that. If given the opportunity, they will try again.

         

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  •  
    identicon
    Anonymous Coward, Apr 1st, 2013 @ 6:43am

    DMCA is already too much in the favor of corporations.

     

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  •  
    identicon
    Anonymous Coward, Apr 1st, 2013 @ 7:07am

    April Fools!

    Wait... are you serious? this is for real isn't it. Worst prank ever.

     

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Apr 1st, 2013 @ 7:09am

    Masnick begins anti-Viacom, and ENDS anti-Viacom.

    Quel surprise.

    It's difficult for Masnick to argue with the sentence, "At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability.", so he put it in boldface and pretends it's refuted. I call that technique "feature as if answered". But looked at rationally, one can only simplify it as a truism: if the clip is on Youtube and the other elements constituting infringement are present, then it's infringing, no matter how blind Youtube tries to be.

    And notice the phrase "willful blindness" -- how often have you seen me mention that? It's a key element to attacking "file hosts", as they simply CAN'T be blind when accurately identifying info is available, often right in the filename.

    Anyhoo, however, Youtube IS slightly different from other file hosts because they limit the length of clips, precisely to try and avoid some obvious hazards. But they're clearly in a pickle as their biz depends on skirting copyright as closely as possible.



    Take a loopy tour of Techdirt.com! You always end up same place!
    http://techdirt.com/
    Where "I'm a pirate! You can't stop me!" is one of the more thoughtful fanboy positions.
    03:09:35[d- 82-8]

     

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      Rikuo (profile), Apr 1st, 2013 @ 7:16am

      Re: Masnick begins anti-Viacom, and ENDS anti-Viacom.

      "And notice the phrase "willful blindness" -- how often have you seen me mention that? It's a key element to attacking "file hosts", as they simply CAN'T be blind when accurately identifying info is available, often right in the filename."


      File-names CANNOT be used to judge if a file is infringing. I could upload a video I shot myself and have the file name be "Batman_Dark_Knight_Rises_Totally_Infringing_Video".
      And key word there. Accurately. Look up the meaning of that word. The problem Viacom is having with its lawsuit, as Mike pointed out and you chose to conveniently skip over, is that Viacom didn't accurately identify infringing videos, often identifying videos it had itself uploaded as infringing.

       

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      gorehound (profile), Apr 1st, 2013 @ 7:36am

      Re: Masnick begins anti-Viacom, and ENDS anti-Viacom.

      Viacom is a MAFIAA POS ! They can lick doggies butts.They and the rest of the MAFIAA A-Holes.

       

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      Sunhawk, Apr 1st, 2013 @ 7:43am

      Re: Masnick begins anti-Viacom, and ENDS anti-Viacom.

      "It's difficult for Masnick to argue with the sentence, "At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability.", so he put it in boldface and pretends it's refuted."

      ... Errr... no. He was quoting from Viacom's claims, and bolded that sentence because he feels that that statement boils down to what he notes after the entire quotation (that it would mean the elimination of safe harbors).

       

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      identicon
      Anonymous Coward, Apr 1st, 2013 @ 7:45am

      Re: Masnick begins anti-Viacom, and ENDS anti-Viacom.

      For someone who whines so much about following the law you sure bitch a lot when Viacom has to do it. What was that you were saying about corporations, again?

       

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      Anonymous Coward, Apr 1st, 2013 @ 7:54am

      Re: Masnick begins anti-Viacom, and ENDS anti-Viacom.

      accurately identifying info is available, often right in the filename

      A file name is near useless for identifying infingeing content because
      1) very different content may have the same file name.
      2) Diffrenty versions of the same content may be under diffrent license, and use the same file name.
      3) The content owner may have deliberately oposted the content, and therefore given implicit permission for it to be distributed.
      Without a fully functioning crystal ball, able to revel the posters identity, who owns the copyright, and license terms on the copy, ther status of the file cannot be dtermied by lookikng ate it tiltle, or even its contents.

       

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      Anonymous Coward, Apr 1st, 2013 @ 10:39am

      Re: Masnick begins anti-Viacom, and ENDS anti-Viacom.

      Ahhh blue. Here I've been semi defending you over the weekend as becoming somewhat lucid and you blow it all to hell. I give.

       

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    identicon
    Anonymous Coward, Apr 1st, 2013 @ 7:24am

    why dont google buy viacom already? for the patent like motorola?

     

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    identicon
    Anonymous Coward, Apr 1st, 2013 @ 7:31am

    Youtube should pull all Viacom content, even if Viacom posts it. Problem solved. Youtube posts are not a right, they are a privilege, a privilege Viacom doesn't deserve.

     

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      Ed C., Apr 1st, 2013 @ 8:18am

      Re:

      Too true. If they hate the internet soooo much that they can't stand the thought of their precious content even being posted by themselves, then everyone might as well oblige them and strip it all from the internet--every last bit of it. It's said that if it's not on the internet, it might as well not exist. Well, we just let fools like Viacom wipe themselves from the net, we wouldn't need to worry about their existence for very long.

       

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      identicon
      Anonymous Coward, Apr 1st, 2013 @ 10:07am

      Re:

      One slight problem with this plan, how do they identify Viacom content?

       

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      •  
        identicon
        Anonymous Anonymous Coward, Apr 1st, 2013 @ 10:43am

        Re: Re:

        The same way Viacom does. Search for any indication of a Viacom related work and send a DMCA on it. Even on their own websites. Since it is apparent that there is no downside to sending such a notice, many people could just have at it. Eventually (like the proverbial monkeys with typewriters) all Viacom content will be effectively gone from the Internet. Almost in the same way all piracy will stop with the DMCA's big content send out...err

        /s

         

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        •  
          identicon
          Anonymous Coward, Apr 1st, 2013 @ 11:06am

          Re: Re: Re:

          But how is Yoputube meant to know the titles to search for? Viacom may have problems listing all relevart titles that they hold the copyright on.

           

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            identicon
            Anonymous Anonymous Coward, Apr 1st, 2013 @ 1:24pm

            Re: Re: Re: Re:

            /s continued

            That never stopped them. DCMA EVERYTHING!

             

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              identicon
              Ed C., Apr 1st, 2013 @ 2:52pm

              Re: Re: Re: Re: Re:

              Why wait for notices, smaller website owners should just "voluntarily" remove and block any mention of anything belonging to Viacom, even if Viacom reps post it. If they really don't want anything to do with the web or web culture, we could do everyone a favor and simply kick them off. If they complain, tell them they said they didn't want their stuff on the net, we're merely obliging.

               

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    Abara, Apr 1st, 2013 @ 7:35am

    I dont get it: Viacom says that it's up to Youtube to prove that they had no knowledge of infringing works? If they manage to prove that wouldnt that mean that they had knowledge ?

     

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      Rikuo (profile), Apr 1st, 2013 @ 7:52am

      Re:

      They can't. It's proving a negative. You cannot prove a negative. So basically Viacom are saying that unless Youtube can somehow do what is impossible, then Youtube will always be at fault.

       

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        Anonymous Coward, Apr 1st, 2013 @ 8:25am

        Re: Re:

        It gets even sillier when you consider that Viacom put up a good percentage of those "infringing" videos themselves. That should get them done for entrapment, but hey, that only applies to real people, not imaginary ones.

         

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          identicon
          Anonymous Coward, Apr 1st, 2013 @ 10:56am

          Re: Re: Re:

          Viacom did not put up "a good percentage" of the infringing videos. Not even close. Please stop lying. Thanks.

           

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            identicon
            Anonymous Coward, Apr 1st, 2013 @ 11:56am

            Re: Re: Re: Re:

            Given that the named the videos explicitly in the lawsuit they filled anything more than 0% is "a good percentage."

             

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            Anonymous Coward, Apr 1st, 2013 @ 1:41pm

            Re: Re: Re: Re:

            Compared to claiming that the same videoes were posted by Viacom employees, I'd actually wish Youtube would have countersued for DMCA abuses.

             

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    Anonymous Coward, Apr 1st, 2013 @ 8:07am

    you can thank the entertainment industries for this. had they not been allowed (and, basically encouraged!) to change the law from innocent until proven guilty, to guilty unless innocence can be proven, provided you can afford a lawyer, this whole situation would not exist. as with those entertainment industries, Viacom is attempting to get what it wants agreed to by the courts, even though the law says differently. get enough agreements, and the law is automatically changed, until the courts wake up and says otherwise. congress, on the other hand, will go with Viacom as a ruling on what they want the law to say, not on what it says, will benefit the entertainment industries that have paid Senators etc a fortune to get laws changed in their favor anyway. whatever happens, the public will lose out and Google will bottle out, seeing as they haven't got the balls to stand up for anything or anyone that they should do!

     

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      JarHead, Apr 1st, 2013 @ 9:18am

      Re:

      ... to guilty unless innocence can be proven, ...

      ...to guilty unless the defendant have a lot of pull (i.e. money, friends in high places, etc) to scare the plaintiff shitless,...

      FTFY

      You should realize by now that the word "innocence" is an anachronism, at least in the legalistic sense. The accepted & functioning legal meaning of the word right now is "who could pull the biggest gun".

       

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    Jessie (profile), Apr 1st, 2013 @ 8:32am

    So, I know that someone, somewhere is going to kill someone today. Does that mean I am responsable for that death?

     

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      AB (profile), Apr 1st, 2013 @ 8:52am

      Re:

      Viacom seems to think so. You and all the other dirty murdering no-good low-life pirate thieves who make up the entire (thinking) population of the world! :)

       

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    identicon
    DOlz, Apr 1st, 2013 @ 9:37am

    So this is why

    Well now we know why Prenda & company can't show up for Judge Wright, they're busy at their day job.

     

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    identicon
    Anonymous Coward, Apr 1st, 2013 @ 12:35pm

    So let me get this straight, Viacom says Youtube, Is Guilty of Promoting Copyright Infringement, But they still Use it to Promote The Media, they make. Interesting.

     

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      identicon
      Anonymous Coward, Apr 1st, 2013 @ 1:43pm

      Re:

      I know, it's almost as if a Schizophrenic Spaghetti Monster took control of imaginary people or something!

       

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    identicon
    GeoffTate, Apr 1st, 2013 @ 4:55pm

    at one point I really wonder about Viacom with the Jewtube thing and Jon Stewart's show, since they are eMpTy TV, Comedy Central, even the fair faced angels at Nick and no longer CBS, they aren't such an easy target anymore.

     

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


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