it's hard to imagine lawmakers stepping in - the rule is in a good place (although there will probably be litigation interpreting the opinion). The point is that under the rule YouTube tried to push - a site operator could say "we need someone to post the following six movies to fill our our portfolio" and still claim the safe harbor. Now the court is allowed to see if a site operator's conduct went beyond just operating a site to actively encouraging infringement. It's the same line that a hardware store crosses when it gives hammers to a customer to go break the windows of a competitor - not every sale of a hammer is a neutral act, you have to look a little further to see what else was done.
it's hard to imagine lawmakers stepping in - the rule is in a good place (although there will probably be litigation interpreting the opinion). The point is that under the rule YouTube tried to push - a site operator could say "we need someone to post the following six movies to fill our our portfolio" and still claim the safe harbor. Now the court is allowed to see if a site operator's conduct went beyond just operating a site to actively encouraging infringement. It's the same line that a hardware store crosses when it gives hammers to a customer to go break the windows of a competitor - not every sale of a hammer is a neutral act, you have to look a little further to see what else was done.
Actually, Viacom arguement that if you can prove that a site operator is intentionally inducing content (so called Grokster inducement) you must have "knowledge" was adopted with three variations - none of which should matter in practice. First the knowledge requirement now has an objective component (what someone reasonably should know), willful blindness has been expressly incorporated into the law (you can have knowledge if you intentionally try to avoide knowing about copyrigth infringement) , and the requirement that there be no financial benefit/right and ability to control can be satisfied by grokster inducement (Google and the judge argued that specific knowledge of specific infringement was required). These are not "copyright maximalist" kinds of arguments - the law has now moved sensibly to the middle (which is all Viacom wanted) - neutral service providers are safe, but if there is strong evidence of a business model built on infringement (say, MegaVideo or early YouTube), then there is liability. If you believe the creators are entitled to any practical protection at all under copyright, that's a pretty reasonable test.
This is the problem when copyright gets reduced to soundbites. Ask any jazz musician whether they can play the work of Jelly Roll Morton - and of course the answer is "of course". Performance rights are generally subject to blanket licenses in the US and virtually every performance hall and jukebox has an ASCAP & BMI license; recording licenses are similarly easily available as "mechanicals" - also by compulsory license. The only thing NOT easily available in music would be the actual recording - but of course, those are easy to find for low rates, too (no incremental cost if you have Pandora, Spotify, Rhapsody, or pay to own on itunes, amazon). So exactly HOW is the culture being harmed? Why shouldn't the heirs of the founder of jazz receive their royalties when we enjoy his masterful work?
It is true that metaphors matter, but the nonrivalrous good concept (you still have it when I take it) and the "monopoly" concept are both uses that discriminate against creators. Take "monopoly" which brings up images of AT&T and google. The right term is "exclusive right". You have an exclusive right to your post under copyright law, but I don't think ou are a "monopolist". Similarly with the "nonrivalrous good" concept Larsson misuses. It simply is beside the point. For example, if i take your car tonight and return it tomorrow, you still have it, but I've violated your exclusive right to drive your car. The point is that all property rights are about a bundle of rights (the right to sell your car, to drive it, to modify it, and so on) not about the physical object. So it is with expression -- the person who creates it is given the right to decide what to do with it, and interference is a violation of that exclusive right. If that interference is the meaning of "theft" than an unauthorized transmission of your work is just as much theft as interference with your right to decide what to do with your stuff.
Mike you're a better lawyer than that. Goodlatte is saying that "I think it is unrealistic to think we're going to continue to rely on the DMCA notice-and-takedown provision," Goodlatte said. Pierre-Louis is saying that the DMCA survives. the sentences are completely consistent
the DMCA applies only in the US, for example. The DMCA is also NOT only a notice-and-takedown statute- for example there is no safe harbor if there is no agent for service of process, no safe harbor if the storage provisions is relied upon but the operator knows of infringement, etc. Notice and takedown only works for US sites that actually respond to takedown notices and act in good faith. No one is suing to block the phone company. But the pirate bay? Ever try sending them a takedown notice?
(untitled comment)
it's hard to imagine lawmakers stepping in - the rule is in a good place (although there will probably be litigation interpreting the opinion). The point is that under the rule YouTube tried to push - a site operator could say "we need someone to post the following six movies to fill our our portfolio" and still claim the safe harbor. Now the court is allowed to see if a site operator's conduct went beyond just operating a site to actively encouraging infringement. It's the same line that a hardware store crosses when it gives hammers to a customer to go break the windows of a competitor - not every sale of a hammer is a neutral act, you have to look a little further to see what else was done.
(untitled comment)
it's hard to imagine lawmakers stepping in - the rule is in a good place (although there will probably be litigation interpreting the opinion). The point is that under the rule YouTube tried to push - a site operator could say "we need someone to post the following six movies to fill our our portfolio" and still claim the safe harbor. Now the court is allowed to see if a site operator's conduct went beyond just operating a site to actively encouraging infringement. It's the same line that a hardware store crosses when it gives hammers to a customer to go break the windows of a competitor - not every sale of a hammer is a neutral act, you have to look a little further to see what else was done.
what you're missing
Actually, Viacom arguement that if you can prove that a site operator is intentionally inducing content (so called Grokster inducement) you must have "knowledge" was adopted with three variations - none of which should matter in practice. First the knowledge requirement now has an objective component (what someone reasonably should know), willful blindness has been expressly incorporated into the law (you can have knowledge if you intentionally try to avoide knowing about copyrigth infringement) , and the requirement that there be no financial benefit/right and ability to control can be satisfied by grokster inducement (Google and the judge argued that specific knowledge of specific infringement was required). These are not "copyright maximalist" kinds of arguments - the law has now moved sensibly to the middle (which is all Viacom wanted) - neutral service providers are safe, but if there is strong evidence of a business model built on infringement (say, MegaVideo or early YouTube), then there is liability. If you believe the creators are entitled to any practical protection at all under copyright, that's a pretty reasonable test.
(untitled comment)
This is the problem when copyright gets reduced to soundbites. Ask any jazz musician whether they can play the work of Jelly Roll Morton - and of course the answer is "of course". Performance rights are generally subject to blanket licenses in the US and virtually every performance hall and jukebox has an ASCAP & BMI license; recording licenses are similarly easily available as "mechanicals" - also by compulsory license. The only thing NOT easily available in music would be the actual recording - but of course, those are easy to find for low rates, too (no incremental cost if you have Pandora, Spotify, Rhapsody, or pay to own on itunes, amazon). So exactly HOW is the culture being harmed? Why shouldn't the heirs of the founder of jazz receive their royalties when we enjoy his masterful work?
Re: Moral Panic
Moral panic is a polemical screed. Patry was a good scholar until then. Read piracy by Adrian johns or free ride by Robert Levine.
(untitled comment)
It is true that metaphors matter, but the nonrivalrous good concept (you still have it when I take it) and the "monopoly" concept are both uses that discriminate against creators. Take "monopoly" which brings up images of AT&T and google. The right term is "exclusive right". You have an exclusive right to your post under copyright law, but I don't think ou are a "monopolist". Similarly with the "nonrivalrous good" concept Larsson misuses. It simply is beside the point. For example, if i take your car tonight and return it tomorrow, you still have it, but I've violated your exclusive right to drive your car. The point is that all property rights are about a bundle of rights (the right to sell your car, to drive it, to modify it, and so on) not about the physical object. So it is with expression -- the person who creates it is given the right to decide what to do with it, and interference is a violation of that exclusive right. If that interference is the meaning of "theft" than an unauthorized transmission of your work is just as much theft as interference with your right to decide what to do with your stuff.
(untitled comment)
Mike you're a better lawyer than that. Goodlatte is saying that "I think it is unrealistic to think we're going to continue to rely on the DMCA notice-and-takedown provision," Goodlatte said. Pierre-Louis is saying that the DMCA survives. the sentences are completely consistent
the DMCA applies only in the US, for example. The DMCA is also NOT only a notice-and-takedown statute- for example there is no safe harbor if there is no agent for service of process, no safe harbor if the storage provisions is relied upon but the operator knows of infringement, etc. Notice and takedown only works for US sites that actually respond to takedown notices and act in good faith. No one is suing to block the phone company. But the pirate bay? Ever try sending them a takedown notice?