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.

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.

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.

I mean, when I had my first meeting with counsel, they explained to me very carefully that.... By taking the matter to court, the entire private information which I was complaining about would be rehearsed again in public, with all the press there, with the benefit of absolute privilege for anything that was said, and that at the end of all of that, no judge could remove the private information from the public mind. Indeed, by going to court, I was augmenting the degree to which the public were aware of it.

It's in the hundreds. My lawyers would probably produce an exact figure. One of the difficulties is that Google have these automatic search machines so if somebody puts something up somewhere, if you Google my name, it will appear. We've been saying to Google, you shouldn't do this, this material is illegal, these pictures have been ruled illegal in the English High Court. They say we're not obliged to police the web and we don't want to police the web, so we have brought proceedings against them in France and Germany where the jurisprudence is favourable. We're also considering bringing proceedings against them in California.

But the fundamental point is that Google could stop this material appearing, but they don't, or they won't as a matter of principle. My position is that if the search engines -- if somebody were to stop the search engines producing the material, the actual sites don't really matter because without a search engine, nobody will find it, it would be just a few friends of the person who posts it. The really dangerous thing are the search engines.

Accordingly, such an injunction would result in a serious infringement of Netlog’s freedom to conduct its business since it would require Netlog to install a complicated, costly, permanent computer system at its own expense.

Moreover, the effects of that injunction would not be limited to Netlog, as the filtering system may also infringe the fundamental rights of its service users - namely their right to protection of their personal data and their freedom to receive or impart information - which are rights safeguarded by the Charter of Fundamental Rights of the European Union. First, the injunction would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network, that information being protected personal data because, in principle, it allows those users to be identified. Second, that injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

In May 2011 the Ministry of Culture announced that it had put forward proposals for amendments to the Copyright Act which would “..give licensees the tools they need to follow-up on copyright infringement on the Internet, while protecting privacy.”

The key proposals included making it easier for rightsholders to identify infringers from their IP addresses and amendments to the law to allow ISP-level blocking of sites deemed to be infringing copyright.

If the plan is backed by manufacturers, it would mean that owners of every brand new computer would be asked if there are children in the household when they are first turned on. If the user answers positively, they will be prompted to adjust their internet filters accordingly.

If parents repeatedly click OK to get through the process more quickly, the computer would automatically block access by any user to sites containing pornography and self-harm. Internet service providers (ISPs) would also be required to verify the age of the person setting the controls, so that a child can't do it.

Next up, if watching everyone I've ever met handle iTune's EULA process is any indication, you can expect roughly one-billion percent of internet users in the UK to fall into the "clicked like hell through the process" category. This would automatically turn the filters on to whatever David Cameron thinks is the appropriate level. I imagine frustrated adults trying like hell to search the internet for the answer to the age old question "Why the hell is everyone freaking out about Kate Middleton having boobs?" would then try to reset the filters, but would then click through them quickly again, resulting in only more frustration.
 

Frankly, it's also fun to imagine how this software would determine exactly what is too "quick" of a click-through, given that different people read at different speeds.

Finally, it would be interesting to hear how exactly his plan to have ISPs verify the age of the people they're likely talking to on the phone would work. We've noted previously how difficult and riddled with potential danger age verification of this nature can be, so how exactly is Cameron going to accomplish this? Unless he plans on forcing ISPs to do site visits or meet with child protection services for every account, they're still going to have to talk to their customers over the phone. Now, this may come as a shock to Cameron, but kids occasionally lie.

In the end, this is yet another move by government to wrestle away a free and open internet. Unlike some other measures, Cameron may actually believe his "for the children" trope, but the best protection of children comes from involved parents. Trying to treat the symptom rather than the problem not only won't work, but it opens the door for some truly bad inadvertent outcomes.

The Court of Appeal in Paris had ruled that Google had a duty to make sure that an unauthorized copy of a film was not re-posted to YouTube after it had been removed following a complaint. However, the Court of Cassation, the court of final appeal for civil and criminal matters in France, struck down this judgment. Its logic was as follows: if a Web site were expected to take down every future copy of a file that had been removed following a complaint, but without being told exactly where the new copies were located, the only way it could achieve that was by constantly monitoring all users to check that they were not uploading that file. That, the Court of Cassation ruled, was not proportionate and, furthermore, forbidden by European law (presumably a reference to the SABAM ruling from earlier this year.)

That's the good news. The bad news is that HADOPI threatens to rear its ugly head here. According to the same post on the French PC Inpact site, Article L336-2 of the HADOPI law introduced an extremely broad duty to do everything possible to stop copyright infringement. Quite what that means in practice has never been tested, but following the Court of Cassation's rejection of filtering, it seems likely that we shall find out soon enough.

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As the ORG report highlights, this kind of overblocking does not augur well for any UK government attempts to widen filtering to include fixed-line access:

If they follow a similar blueprint of ISP level filtering as mobile operators, all the problems we have highlighted would be reproduced at a larger scale. For example, most fixed-line connections are shared by a number of people using a variety of devices. Implementing filtering in that situation would require a range of approaches from whitelisting for young children to censorship-free connections for adults.

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As the author of the article quoted above, Mark Goodge, points out:

It also gives the lie to two other common claims made by pro-compulsion campaigners: that ISPs are irresponsible and parents don’t care, and the only solution to both of those is legislation. In reality, a lot of parents do care about what their children are accessing on the Internet, and will choose to use a system which does screen out the worst of it if that option is available. And ISPs are responsive to consumer demand, so they’re choosing to offer that to their customers.

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In the main proceedings, the injunction requiring the installation of a filtering system would involve monitoring all or most of the information stored by the hosting service provider concerned, in the interests of the copyright holders. Moreover, that monitoring would have to have no limitation in time, be directed at all future infringements and be intended to protect not only existing works, but also works that have not yet been created at the time when the system is introduced. Accordingly, such an injunction would result in a serious infringement of Netlog’s freedom to conduct its business since it would require Netlog to install a complicated, costly, permanent computer system at its own expense.

Moreover, the effects of that injunction would not be limited to Netlog, as the filtering system may also infringe the fundamental rights of its service users - namely their right to protection of their personal data and their freedom to receive or impart information - which are rights safeguarded by the Charter of Fundamental Rights of the European Union. First, the injunction would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network, that information being protected personal data because, in principle, it allows those users to be identified. Second, that injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

Consequently, the Court’s answer is that, in adopting an injunction requiring the hosting service provider to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

First of all, there are billions of paper books on planet earth right now, but there was never any talk about being too many, or worries the paper market was saturated. What a ludicrous concept.

Author: Do you want put publish my new book?

Publisher: I'm sorry, but there are already too many books. We can't print anymore.

Silly, ain't it?

As long as websites like Amazon make browsing easy, the cream has the potential to rise to the top. You don't have to be a monster bestseller. A hardcore niche group of 10,000 fans can support a writer quite easily. Write two ebooks per year at $2.99, and three shorts at 99 cents, and you're making $50k a year.

But ebooks don't stop selling after a year. They sell forever. And good books will eventually find more than just 10,000 readers. And every new book you write will find new readers along with old fans.

Going back to the 2031 figures, an author will have a much better chance of finding those career-sustaining 10,000 readers when there are 100 million ereaders out there.

And for those not there, remember that cream rises. If you made cream, and it hasn't risen yet: make more cream.

“Based on the law, the use of VPNs or other antifiltering software is forbidden and considered a crime,”

Over in the UK, British Prime Minister David Cameron has just introduced a rather overextensive anti-porn "crackdown" which forces Britain's four largest ISPs to filter pornographic material unless the user specifically opts in. Acting pretty much at the behest of something called the Mothers' Union, Cameron is also taking on billboards, aggressive advertising, sexualized tween clothing articles and, well, just about anything any concerned parent can dream up, thanks to the brand new Parentport website, where parents can go to file complaints about "any TV programme, advertisement, product or service they feel is inappropriate for children."

Stanley seems to be ok with all of this (as well as its obvious potential for abuse), referring to it as a "modest" proposal. He expresses dismay that so-called "conservative" commentators find this to be "injurious to liberty," while dropping what may very well be the quote of the day:

I am confused as to why such people use the label conservative to describe themselves. The single purpose of conservatism is to protect what is good about the traditional order. The internet is a threat to the traditional order and so it is not our friend. The North Koreans understand that, even if we do not.

Internet pornography is an obvious example of how permitting one variety of perversion invariably leads to greater and more terrible crimes. The internet turned pedophilia from a private sin into an organized crime. It put people in touch with each other who would never have otherwise met, allowing them to pool resources and share victims. It gave predators access to kids through forums. It also used mainstream porn as a gateway drug. By introducing younger and younger models into erotica, it blurred the lines between childhood and adulthood. People who previously would never have had access to material by which to test their inclinations were now goaded into more and more depravity ("If you enjoyed that, you'll love this..."). Its the expansiveness of the internet that makes it so ripe for regulating.

Nowadays, all a child has to do to access some muck is to log on to the family computer. Within seconds they can see videos of whips, goats, origami and tantric projection - the whole T&A.

I would go one step further and suggest that it's time to give back to local authorities the power to outlaw the sale of pornography altogether.

Like heroin, porn has been proven to be addictive.

On an existential level, pornography objectifies human beings, reducing them to the status of commodities. There is no need to engage with them as real people because the sexual stimulus is entirely one sided. This encourages the viewer to regard the subject as less than human.

That objectification has lethal consequences. Porn addiction is a common trait among serial killers. The murderer Ted Bundy detailed his experiences thus: "I would keep looking for more explicit, more graphic kinds of materials ... until you reach the point where the pornography only goes so far. You reach that jumping-off point where you begin to wonder if maybe actually doing it will give you that which is beyond just reading about it or looking at it."

When I was a child, getting access to filth was bloody hard work. The best source was The Daily Sport, a silly old rag that featured saucy stories... All of this contact with nudity was fleeting and furtive. The joy was less in the seeing than the getting.

IP blocking is a blunt method of filtering content that can erase from view large swaths of innocuous sites by virtue of the fact that they are hosted on the same IP address as the site that was intended to be censored. One such example of overblocking by IP address can be found in India, where the IP blocking of a Hindu Unity website (blocked by an order from Mumbai police) resulted in the blocking of several other, unrelated sites.

But more emotionally, we turn to a German group named Mogis. It is a support group for adult people who were abused as children, and is the only one of its kind. They are very outspoken and adamant on the issue of censoring child pornography.

Censorship hides the problem and causes more children to be abused, they say. Don’t close your eyes, but see reality and act on it. As hard as it is to force oneself to be confronted emotionally with this statement, it is rationally understandable that a problem can’t be addressed by hiding it. One of their slogans is “Crimes should be punished and not hidden”.

This puts the copyright industry’s efforts in perspective. In this context they don’t care in the slightest about children, only about their control over distribution channels. If you ever thought you knew cynical, this takes it to a whole new level.

The conclusion is as unpleasant as it is inevitable. The copyright industry lobby is actively trying to hide egregious crimes against children, obviously not because they care about the children, but because the resulting censorship mechanism can be a benefit to their business if they manage to broaden the censorship in the next stage. All this in defense of their lucrative monopoly that starves the public of culture.

If you've ever wondered why government and legislators so routinely ignore the numerous protestations and objections made by gamers and those against internet filtering, you'd be well advised to look at the Australian Law Reform Commission's (ALRC) list of public submissions. The Issues Paper has been published since May 20 and as yet only 80 public submissions have been made - 80 per cent of them from people who believe in government intervention for the sake of child protection.

It is understood Telstra was last night still grappling with the decision as to whether to commit to the voluntary filter because of fears of reprisals from the internet vigilantes behind a spate of recent cyber attacks.

It is understood the unstructured collective of hackers that identifies itself as Lulz Security, which has an agenda to wreak havoc on corporate and government cyber assets, claiming this is to expose security flaws, is one of Telstra main concerns.

The problem with such a plan is multi-layered: First, there is no transparency in the selection of URLs to be blacklisted, and no accountability from the regulatory bodies creating the blacklists. The “reputable international organizations” providing child abuse URLs have not been named, but may include the Internet Watch Foundation, a UK-based organization that in 2008 advised UK ISPs to block a Wikipedia page containing an album cover from the 1970s that they deemed might be illegal.

The ACMA itself has run into problems with its blacklist as well. After Wikileaks published the regulator’s blacklist in 2009, it was discovered that the list contained the website of a Queensland-based dentist, as well as numerous other sites unrelated to child sexual abuse or illegal pornography.

Second, filtering does little to curb the trade of child pornography, much of which is traded across peer to peer networks and VPNs. Filtering it from the world wide web may simply push it further underground.

Third, there appears to be no appeals process in the Australian ISPs’ scheme, thereby making it difficult for sites erroneously caught up in the filter to challenge the block.

Lastly, the introduction of a filter sets precedent for the ISPs to filter more sites in the future at the behest of the ACMA. If the ACMA were to make the decision that sites deemed "indecent" or politically controversial--for example--should be off-limits, would the ISPs comply?

Mahalo's Google traffic is down 78 percent, Associate Content's is down 61 percent and Examiner.com is down 51 percent.

The court order would apply in abstracto and as a preventive measure, which means that a finding would not first have been made that there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.

In particular, the Advocate General points out that the court order would have a lasting effect for an unspecified number of legal or natural persons irrespective of whether they have a contractual relationship with Scarlet and regardless of their State of residence. The system must be capable of blocking any file sent by an internet user who is one of Scarlet’s customers to another internet user -- who may or may not be one of Scarlet’s customers and who may or may not live in Belgium -- where that file is thought to infringe a copyright managed, collected or protected by Sabam.

The installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

The requirement that DMCA-compliant notices identify and locate specific acts of infringement undermines Plaintiff's position, as her past notices do not identify and locate other, and future, infringing activity. The Court does not accept her invitation to shift the burden from her to Photobucket....Without receiving notices identifying and locating each instance of infringement, Photobucket did not have "actual knowledge" of the complained of infringements or "aware[ness] of facts or circumstances from which infringing activity is apparent."

Plaintiff contends that failure to grant her relief will require her to find infringing activity on Photobucket's site and report it to them through DMCA-compliant notices. She contends that this will be difficult and labor intensive. However, the purpose of her motion is to shift that same burden to Photobucket, without Photobucket having the benefit of knowing whether Plaintiff has authorized any of her works to be displayed on its site. While, as Plaintiff points out, Photobucket is the larger enterprise, the burden it would bear in having to continually search its site for infringing activity is heavy. Furthermore, saddling Photobucket with this responsibility is out of step with the DMCA, which, as noted above, places the burden of uncovering infringing activity on copyright holders.

"Plaintiff concedes that such technology is very burdensome to implement and notes Photobucket's contention that it would not be feasible to use such technology."