Grooveshark Loses Latest Round In Court, In A Ruling That Could Gut The DMCA's Safe Harbors

from the letter-and-spirit dept

The last big news in the ongoing fight between Universal Music Group and Grooveshark (and its parent company Escape Media) came back in July, when a New York court rejected UMG’s argument that the DMCA’s safe harbors didn’t apply to pre-1972 sound recordings, because, technically, those recordings are not covered by federal copyright law. This was in keeping with the ruling in the fight between EMI and MP3Tunes, and seemed most consistent with the intent of DMCA safe harbors.

Naturally, UMG appealed, and in doing so made some compelling arguments about the wording of the law. The appellate court agreed, and has now issued pretty much the opposite decision: pre-1972 sound recordings are not covered by the DMCA (pdf and embedded below) and thus Grooveshark has no DMCA safe harbors for such songs.

There are a few different parts to the ruling, but the core argument is straightforward: section 301(c) of the Copyright Act explicitly states that no “rights or remedies” under common law copyright on pre-1972 recordings shall be “annulled or limited” until 2067, and it’s pretty hard to argue that the DMCA doesn’t do that:

Initially, it is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act. Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG’s rights, and an implicit modification of the plain language of section 301(c). The word “limit” in 301(c) is unqualified, so defendant’s argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act.

For defendant to prevail, we would have to conclude that Congress intended to modify section 301(c) when it enacted the DMCA. However, applying the rules of construction set forth above, there is no reason to conclude that Congress recognized a limitation on common-law copyrights posed by the DMCA but intended to implicitly dilute section 301(c) nonetheless.

Under such circumstances, it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat.

Take note of that last bit, because this ruling has made it more true than ever. And that’s where the problems come in. It seems pretty clear that there is some sloppy drafting in how the DMCA is written (which isn’t a surprise), in that what you have is wording that can be read this way, even though it clearly goes against the intent and purpose of the DMCA. If the DMCA’s safe harbors don’t apply to pre-1972 recordings, then the DMCA’s safe harbors no longer apply at all to any service that includes music. That can’t be what Congress intended, even if the wording of the law can be read that way.

Thus, if you go strictly by the wording, while ignoring the intent, the logic of the decision is sound, but the implications are disturbing: as Grooveshark pointed out in their defense, this interpretation would gut the DMCA. One of the key purposes of safe harbors was to prevent online services from needing to proactively scan for infringing works, since that would drastically and unfairly limit their growth, and we wouldn’t have things like YouTube today if that were the case. But if pre-1972 recordings (which is plenty of material) are not included, then user-generated content sites do have to scan everything. And while it might be somewhat easier to identify pre-1972 recordings than it is to identify infringing uploads, it would still be insanely prohibitive — not to mention the massive loss to our culture from having a huge chunk of music history mostly vanish from the internet.

It’s a little unclear just how far-reaching this ruling will be (it’s at the state level, and it is in itself explicitly contradicting the earlier MP3Tunes ruling, which it declares to be “wrongly decided”) but the potential implications are huge. Exempting all pre-1972 recordings from the DMCA would impact all corners of the internet in a bad, bad way. The only optimistic thought is that perhaps it would force congress to revisit the law, and we could finally push for a Digital Millennium Copyright Act that actually works in the digital millennium.

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Companies: emi, escape media, grooveshark, mp3tunes, umg

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Comments on “Grooveshark Loses Latest Round In Court, In A Ruling That Could Gut The DMCA's Safe Harbors”

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161 Comments
Aaron Wolf (profile) says:

Re: Because sabotaging the past helps present sales

Lots of people like pre-1972 music more than pre-1927 music. Those people might pay for pre-1972 music if forced to, but once they are thinking about spending some $, they might choose to instead go for some post-1972 or even post-2012 music. If you make pre-1972 music public domain, then everyone will have enough free music they like and might not bother paying as much in general for music. It’s good for current artists if old music is sabotaged because it’d be harder to compete with the public domain if the public domain were better.

No, I don’t support sabotaging the public domain. But this is a reason the maximalists support but will never admit.

Anonymous Coward says:

Re: Re: Because sabotaging the past helps present sales

Funny, when I buy pre-1972 music, I spend less on current music by dint of the fact I just spent a portion of my music budget on older music. If, on the other hand, I could get my Bob Dylan fix by not spending any money, due to his pre-’72 work being public domain, I would have enough money to experiment with the newer stuff.

Me!!! (user link) says:

Re: Re: Because sabotaging the past helps present sales

If you make pre-1972 music public domain, then everyone will have enough free music they like and might not bother paying as much in general for music. It’s good for current artists if old music is sabotaged because it’d be harder to compete with the public domain if the public domain were better.

That’s kind of how things are right now, since most pre-2014 music is already ‘public domain’ by nature of the internet.

I agree, though, that older music being free is a hindrance to newer musicians. I always think of Led Zeppelin and how it’s very hard for up and coming bands to even make a name for themselves by giving away their catalog, which they’ve most likely recorded on a shoestring budget, when paying for Led Zeppelin albums (produced by highly specialized professionals) is merely an option.

When I first started releasing music I was able to get my foot in a lot of doors by undercutting major release prices. In the days $18.99 CDs I would sell to local record stores at massive discounts, so that they could charge maybe $7 to $10, leaving themselves with a $6 to $8 margin, which is much wider than what they got from selling current ‘major’ or ‘major indie’ releases. It encouraged the owners to promote the music in-store since they profited much more than average from my releases.

These days, I wouldn’t even know where to begin trying to promote in a similarly passive manner. Hey kid! Don’t spend “no dollars” downloading that awesome .flac rip of the entire Beatles discography, download my melodic but poorly recorded bedroom rambling… for the low low price of “no dollars!”

Personally, I couldn’t care less about what the labels do with their old catalog. I almost wish they could force people to pay for Beatles and Stones albums. Lock the Led Zeppelin masters up in a vault and charge people $10,000 to listen; I don’t care. Just get these dinosaurs out of the way and let newer voices climb above the fray.

Don’t get me wrong, I love the old stuff. Obviously, it’s still in demand, and who’s going to argue with the audience? However, I feel like our culture, particularly internet groupthink, has become obsessed with the past. Life has become a museum, slowly creeping towards mausoleum. Let the past die, these are not our stories. It’s OK to forget things. It may even be crucial that we do forget much of the trivial past. Every piece of garbage does not “tell a story,” as I heard one bobble head tell it. Stories tell stories. It’s absolutely crucial to improving musical culture to get our collective asses out of the fucking sixties(!) already.

So yeah, part of me says, “Let ’em have their forever-less-a-day copyright!” Please. And IN PARTICULAR: take Steely Dan with you. Some culture needs to be locked away.

Now, s’cuse me while I un-ironically put on some Hendrix.

Rapnel (profile) says:

Re: Re: Re: Because sabotaging the past helps present sales

Nice. I think that they think that they might still have a chance at throttling reality. While they’re giving it a good go they are, ultimately, so doomed. So very, very doomed. The lockup is just shy of prison riot and the national guardsmen are likely to be otherwise occupied. I guess that’s why there are lawyers.

Boy, even that law occupation is going to be a bust soon in the realm of copyright. “You tellin’ me I can’t talk right now?” Good one.

jupiterkansas (profile) says:

Re: Re: Re: Because sabotaging the past helps present sales

The internet has dumped the past on us.

The last fifteen years has been nothing but exploring all the stuff that has been locked up in corporate vaults for decades, freed by the likes of Youtube. That’s why we have all these remixes, remakes, and reboots.

It’s not just the famous stuff like the Beatles back catalog. It’s all the Beatles-wannabes that everyone forgot about. It’s all the rare recordings and bootlegs that once were hard to find but now are plentiful. It’s the television appearances that someone happened to have on VHS and was able to share with the world, because the the TV networks can’t figure out how to make that stuff available.

There’s absolutely no commercial value to 99.9% of pre-1972 culture, but we lock it all up to protect .1% of the stuff that people will still buy.

bob (profile) says:

Uh... it's a mistake to rely upon the DMCA

You can tell a failing business by their claim that the DMCA will save them from infringement charges. Somehow there’s this belief around places like this that startups can get the world to pirate the material and then the startup will get to keep the gold.

That hasn’t worked for anyone, except perhaps for Google. The difference with Google/YouTube is that Google has a legit ad business that’s minting money. For some insane reason they choose to use it to stave off legal assaults on YouTube and their Book piracy instead of simply coming to their senses. Why they don’t want to share the revenue with the artists who made it possible is beyond me.

The biggest problem that Grooveshark has is that they don’t have any revenue to pay the lawyers. And why is that? Because they’re listening to some of the loons around here who think that you can give away everything for free and somehow cash big checks.

The DMCA is irrelevant to this. The problem they have is the absense of a business model where people pay them real money. Not “reputation”. Not “t-shirts”. But real cash they can use to keep the lights on and the lawyers loyal.

Anonymous Coward says:

Re: Uh... it's a mistake to rely upon the DMCA

I wonder how we came by this crazy idea that a ‘safe harbor’ means a harbor which is safe. It’s like we all read into the word safe to mean crazy things like safe. I’m sure in the world according to bob safe means something sensible like vulnerable or liable and service providers are expected to honor the notice and takedown extra-legal process in exchange for zero change in their liability.

Anonymous Coward says:

Oh, Marcus. You should stick to mediocre rapping.

Thus, if you go strictly by the wording, while ignoring the intent, the logic of the decision is sound, buts the implications are disturbing: as Grooveshark pointed out in their defense, this interpretation would gut the DMCA.

So some amorphous intent that you haven’t even demonstrated to exist should control over the plain language of the Act? That’s not how it works.

One of the key purposes of safe harbors was to prevent online services from needing to proactively scan for infringing works, since that would drastically and unfairly limit their growth, and we wouldn’t have things like YouTube today if that were the case.

512(m)’s provision about no duty to monitor merely codified the common law rule that there’s no duty to monitor. You haven’t demonstrated that this ruling means there is a duty to monitor, and that’s easily explained by the fact that there is none.

But if pre-1972 recordings (which is plenty of material) are not included, then user-generated content sites do have to scan everything.

Total FUD that you made up and that you can’t prove exists because it doesn’t.

Exempting all pre-1972 recordings from the DMCA would impact all corners of the internet in a bad, bad way.

“Bad, bad way.” LOL! Straight from Pirate Mike’s handbook of bullshit, baseless FUD. Your master has taught you well. You should teach him how to rap in your patented mediocre style.

Anonymous Coward says:

Re: Re: *sigh*

Huh? Where’s Marcus’s evidence that “gutting the safe harbors” with pre-1972 recordings means there is all of the sudden a “bad, bad” duty to monitor? Scare!!! That’s the crux of his argument, yet he didn’t even begin to back it up. Talk about FUD. Mediocre rappers shouldn’t try and be legal bloggers. It hurts too much!

Anonymous Coward says:

Re: Re: Re: *sigh*

Not to defend MC Stinks-A-Lot, but he has a point. Because pre-1972 media is not covered by the DMCA, it seems anyone not wanted to get their ass sued off will have to proactively monitor their systems for pre-1972 infringing content. By so doing, presumably in the monitoring process they’ll discover other infringing content that is post-1972. That will give them specific knowledge, which is its own problem. But the bottom line is that websites will have to take responsibility for what appears or spend every day in court. This decision has very significant implications.

Anonymous Coward says:

Re: Re: Re:2 *sigh*

Absent the DMCA, the common law controls. Under the common law there is no affirmative duty to monitor. The liability of service providers would be analyzed under regular contributory and vicarious infringement doctrines (which 512(c) basically codified disqualifying service providers of the safe harbor). The 512(c) safe harbor basically relieves service providers of liability though they would not have been liable under the common law anyway. In other words, the 512(c) safe harbor doesn’t relieve anyone of liability who would have been liable in the absence of 512(c).

Anonymous Coward says:

Re: Re: Re:3 *sigh*

Not sure I completely understand. It sounds like you are essentially saying that the safe harbor provision is meaningless? I get that it doesn’t compel monitoring but it seems like without monitoring a website would constantly be defending claims of contributory infringement with no magic bullet (safe harbor) to fire.

Anonymous Coward says:

Re: Re: Re:4 *sigh*

There are differences between the two. My understanding though is that the 512(c) safe harbors are somewhat broader than the common law, i.e., there is some (but not much) activity that 512(c) relieves of liability that would lead to liability under the common law. I’m not sure how that varies by district (it’d be something interesting to investigate), but I don’t think it matters in the run of the mill case.

My point is that the safe harbors don’t provide much (if any) protection that the common law didn’t already protect. The 512(c) safe harbors were merely a codification of the Netcom decision (plus a few others, with some minor differences). Absent the safe harbors you still have Netcom and its progeny which are quite protective of truly innocent service providers.

To your point about monitoring, I don’t see how taking away the safe harbors changes much, since, for contributory liability, there still has to be knowledge (actual or constructive). A service provider wouldn’t be liable under the common law absent knowledge just the same as he would not be liable under the DMCA. Maybe I’m missing something?

Karl (profile) says:

Re: Re: Re:3 *sigh*

So some amorphous intent that you haven’t even demonstrated to exist should control over the plain language of the Act?

According to the Senate report on the DMCA, the intent was that the safe harbors section “provides greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities.”

In other words, the 512(c) safe harbor doesn’t relieve anyone of liability who would have been liable in the absence of 512(c).

And, unsurprisingly, you’re absolutely wrong. Let’s take a look at the House report on the DMCA:

Paragraph 512(a)(1) exempts a provider from liability on the basis of direct infringement for transmitting material over its sys- tem or network at the request of a third party, and for the intermediate storage of such material, in certain circumstances. […] This exemption codifies the result of Religious Technology Center v. Netcom On-line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) (“Netcom”), with respect to liability of providers for direct infringement. […]

Paragraph 512(a)(2) exempts a provider from any type of monetary relief under theories of contributory infringement or vicarious liability for the same activities for which providers are exempt from liability for direct infringement under paragraph 512(a)(1). This provision extends the Netcom holding with respect to direct infringement to remove monetary exposure for such limited activities for claims arising under doctrines of secondary liability. […]

Paragraph 512(a)(3) similarly exempts a provider from monetary relief under theories of contributory infringement or vicarious liability for conduct going beyond the scope of paragraph (1), where a provider?s level of participation in and knowledge of the infringe- ment are low. […] Even if a provider satisfies the common-law elements of contributory infringement or vicarious liability, it will be exempt from monetary liability if it satisfies the criteria in subparagraphs (A) and (B).

The knowledge standard in subparagraph (A) […] differs from existing law, under which a defendant may be liable for contributory infringement if it knows or should have known that material was infringing.

So, no, it’s not simply codifying the Netcom decision, nor common law notions of liability in general.

On the other hand, the Senate report doesn’t mention Netcom at all, nor does it indicate at any point that it’s simply codifying any existing case law. In fact, it makes it clear that the limitations on liability are entirely distinct from any limitations on liability that arise under case law:

New section 512 does not define what is actionable copyright infringement in the online environment, and does not create any new exceptions to the exclusive rights under copyright law. The rest of the Copyright Act sets those rules. Similarly, new section 512 does not create any new liabilities for service providers or affect any defense available to a service provider. Enactment of section 512 does not bear upon whether a service provider is or is not an infringer when its conduct falls within the scope of section 512. Even if a service provider?s activities fall outside the limitations on liability specified in the bill, the service provider is not necessarily an infringer; liability in these circumstances would be adjudicated based on the doctrines of direct, vicarious or contributory liability for infringement as they are articulated in the Copyright Act and in the court decisions interpreting and applying that statute, which are unchanged by section 512. In the event that a service provider does not qualify for the limitation on liability, it still may claim all of the defenses available to it under current law. New section 512 simply defines the circumstances under which a service provider, as defined in this Section, may enjoy a limitation on liability for copyright infringement.

The Senate report also seems to directly contradict the court’s ruling in this case. The report makes it clear that section 512 is not “a limitation” on copyright rights, as it “does not create any new exceptions to the exclusive rights under copyright law.”

Jay (profile) says:

Re: Re: Re:4 *sigh*

What’s funny is how the DMCA safe harbors came to be. It seemed that the trade organizations merely wanted to pass the DMCA without the harbors. Let’s remember that they didn’t go on their rampage until 2008 of suing the entire country and losing everyone.

Out of nowhere, Verizon steps in as a very concerned third party, pushing for the safe harbors.

I know AJ loves to push the idea that Google was powerful enough to push for this, but these safe harbors were a mainstay of Verizon when it was actually concerned about itself (it helped the public immensely but it didn’t protect anyone more than not passing the DMCA would have done).

Anonymous Coward says:

Re: Re: Re:4 *sigh*

According to the Senate report on the DMCA, the intent was that the safe harbors section “provides greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities.”

Good for you, Karl. You made an effort to find a part of the congressional record. That’s more effort than Marcus could muster; while purporting to represent what it said, he couldn’t even be bothered to find the text. Too bad that section of the record says nothing about pre-1972 sound recordings, and it does nothing whatsoever to back up Marcus’s point that the DMCA was intended to cover such recordings. Try again?

And, unsurprisingly, you’re absolutely wrong. Let’s take a look at the House report on the DMCA: ***

Why are you looking at 512(a)? We’ll talking about Grooveshark, so 512(c) is what we’re looking at. Try again?

On the other hand, the Senate report doesn’t mention Netcom at all, nor does it indicate at any point that it’s simply codifying any existing case law. In fact, it makes it clear that the limitations on liability are entirely distinct from any limitations on liability that arise under case law: ***

All that’s saying is that the common law is left intact. More often than not, though, a case turns on whether the 512 safe harbors apply to the defendant or not. If they do, the case is typically over. If not, then use the common law to analyze liability. Not sure what your point is with this either. Try again?

The Senate report also seems to directly contradict the court’s ruling in this case. The report makes it clear that section 512 is not “a limitation” on copyright rights, as it “does not create any new exceptions to the exclusive rights under copyright law.”

512 is a limitation on LIABILITIES, not RIGHTS. The title of the section should clue you in: “Limitations on liability relating to material online.” 512 limits the defendant’s potential liabilities, not the plaintiff’s rights. Try again?

Anonymous Coward says:

Re: Re: Re: Re:

I find that hard to believe. I still have nightmares after watching his lurching, St. Vitas Dance machinations on the stage while belching gibberish into the microphone. To say it was appalling is an understatement bordering on fraud. The CIA could use tapes of his performance to break the will of captured enemy fighters.

It’s that bad. Seriously.

Anonymous Coward says:

Why isn't safe harbors a given?

We’re talking about 3rd party liability here. Why does Grooveshark need a law that says you don’t go after the guy who didn’t post the illegal stuff? If someone’s puts a box of free weed in the Walmart parking lot without Walmart’s knowledge, you don’t shut down Walmart.

RD says:

Re: Why isn't safe harbors a given?

“We’re talking about 3rd party liability here. Why does Grooveshark need a law that says you don’t go after the guy who didn’t post the illegal stuff? If someone’s puts a box of free weed in the Walmart parking lot without Walmart’s knowledge, you don’t shut down Walmart.”

You do if you are the various Big Media/*iaa companies and the weed is copyrighted.

Anonymous Coward says:

Re: Re: Re:2 Why isn't safe harbors a given?

The analogy is beyond moronic. Walmart isn’t responsible for the access to weed that is outside its store. It’s responsible for what is accessible IN its store, and its website, and so as well should Grooveshark.

If these internet “businesses” have to rely on infringement, then they clearly have a bad business model. Duh. Not my problem that they’re idiots.

Chuck Norris' Enemy (deceased) (profile) says:

Re: Re: Re:3 Why isn't safe harbors a given?

What? What does Grooveshark “sell” on their premises or website? Or any file locker? They sell data storage. Just because somebody puts infringing works into storage doesn’t make the provider liable. The analogy works in meat space, too. A mini-storage locker is what is sold…the space inside. The owner has no idea what goes in. But you want to make him liable for what goes in there? Take that to Walmart. They sell a bunch of goods. Say they sell Toshiba laptops that turn out to have exploding batteries. Is Walmart all the sudden responsible? Someone bought a gun and bullets then went and murdered a cop…Walmart needs to be brought to justice! How stupid is that.

Anonymous Coward says:

Re: Re: Re:2 Why isn't safe harbors a given?

So Walmart is responsible of any misdeed done on their property? Sounds pretty idiotic to me and anybody with half a brain.

Tell that to crack house owners or the guy who rents motel rooms by the hour. Guess how many malls get sued successfully every year over abductions, assaults and other crimes?

Wishing something was true doesn’t make it true…. except here on Techdirt.

Anonymous Coward says:

Re: Re: Re: Why isn't safe harbors a given?

No one is talking about shutting down.

That sounds like a line from an old gangster movie – “No one’s talkin’ about killin’. We’re just going to take all your oxygen away, see.”

How is suing Grooveshark for 17 billion dollars not equivalent to trying to shut the business down?

Ninja (profile) says:

Re: Why isn't safe harbors a given?

That. I’d add that if this ruling goes ahead and Congress doesn’t clarify we risk simply creating an hiatus of everything under copyright that was created prior to 1972 since providers will actively filter any remotely possible stance. And considering how much of the culture the MAFIAA is holding behind the copyright lock that is simply rotting in the storages we could actually see some sort of cultural “Dark Ages”. So much for something that should “promote the Progress of Science and useful Arts”…….

Anonymous Coward says:

The labels wish to gut the DMCA so that they can gut the Internet. They will only be satified when the Internet is reduced to a glorified cable system. Further many politicians will not be too worried about such an effect, as they can could still get their message out, but the public would be rendered almost mute, like in the pre-Internet days.

Anonymous Coward says:

Re: Re: Re:

Are yoy happy that they are trying to destroy the best means of free speech ever made available to humans. The internet is the only medium of free speech that allows and individual to obtain a potential global audience without having to have someone else approve his/her speech. If the labels, studios and other publishers get their way, all speech on the Internet will have to be approved by a gate-keeper of some kind.

Anonymous Coward says:

Re: Re: Re:4 Re:

The three largest studios, in collusion with each other, design laws (through their “trade organisations”, no less) that benefit almost solely those companies, so that they can perform criminal acts, under their own self-written laws, with impunity.

In addition, there has been known criminal activity by these same companies, from fraud to accessory to assault and battery to aiding and abetting, embezzlement and theft.

So you tell me man, why do you hate the downloaders so much, when you should be going after the uploaders?

That One Guy (profile) says:

Re: Re: Re:

I’m curious, what exactly do you mean when you say a business has to ‘rely on infringement’?

I mean, it can’t be ‘has potentially infringing/illegal content in it’s service’, as by that logic you would have to shut down the post office, phone lines, roads, and any other service that might traffic in infringing/illegal goods, just as sites that accept user created content might have infringing content on their site.

Jay (profile) says:

Re: Indefensible

But their position is unattainable. Sure, they have 30 years of low tax rates to provide money to this project. Yes, the ISPs help to slow down the internet. But they won’t ever achieve the end goal of making the internet a cable system. It’s a mass communications democratic tool. Even for the politicians, they can’t change this fact.

The need to regulate may be strong, but it’s like dealing with lightning. Your chances of getting hit by these bolts are incredibly low.

The consequences of trying to shut off the internet will reach these people far more than anything they do to try to control it though…

Just think about it… They spend the money for their monopoly position and they ignore the competition underneath them. They ignore the Kickstarters and entertainments that people actually enjoy. They are losing more revenue by not providing the public with new services. Eventually, they will have a disruption that they’ve never seen coming. Whether that’s from gaming companies usurping their position as the largest companies or Google Fiber creating even faster broadband without the spyware (stop laughing), the disruption will change their tune the same as a new president that doesn’t take corporate bribes from being a left wing president similar to FDR.

Anonymous Coward says:

Re: Re: Indefensible

If letting users post without checking their post, and recursively through any links, leaves a service provider open to legal action they will change their business model or shut-down.
The problem with third party liability is that it turns any site that accepts user postings into a publisher, with all the requirements for due diligence before publishing the submission. The volume of material published to the Internet drops dramatically under these conditions. Also conversations on site like this are slowed down, because of the need to vet all posts, because you can bet that a text version of a url will also count as a link, as it can be used via cut and paste.
The Internet is vulnerable to this sort of attack, because it has become a client server system, and the service providers who provide the servers , and services can be attacked.

Rapnel (profile) says:

Re: Re: Re: Indefensible

Peer-to-peer seems the natural progression then. Sync a torrent folder and share a video… and that’s just what’s going down now. Who fears that immediately following? Yes, these copyright bleeders are going to get slammed. With no insight beyond infiltration. The funny thing is they keep getting all these chances, all this time, all those works and they have, what? Nothing. Exactly nothing. Forceful rape and manipulation of legislation. Awesome. Those that do deserve the end.

Jay (profile) says:

Re: Re: Re: Indefensible

If letting users post without checking their post, and recursively through any links, leaves a service provider open to legal action they will change their business model or shut-down.
You’re right. It’s self-censorship. You should not have to check with anyone for your post to be written and now you’re asking for a system where people MUST self censor in order to produce content. That is beyond absurd.

Anonymous Coward says:

Re: Re: Re:2 Indefensible

The problem is that third party liability requires that the site owners carry out the checks.The impact is that anyone who wished to host user contributions has to carry out the recursive link checks before allowing the post to appear. They probably do not know, or have the ability to determine the copyright status of the targets of all links, or phrases in the user content.

Anonymous Coward says:

Re: Re:

They want the internet to be nothing more than a big meme farm. Free range memes are all the rage. They feel they should be corralled on the internet in a series of tubes full of first world problems interpreted by Joseph Decreux in the form of the most interesting man in the world sitting on good guy Greg’s lap talking to badluck Brian about success baby.

Anonymous Coward says:

So now there’s no DMCA at all anymore? Right?

That understandable but moronic interpretation of the law has made any and all services where users can upload sound effectively lose DMCA protection, as it’s just a matter of time before someone uploads pre-1972 sounds. Grooveshark, illegal. Youtube, illegal. Apple’s clous storage, illegal. Google mail, illegal.

Anonymous Coward says:

If the DMCA’s safe harbors don’t apply to pre-1972 recordings, then the DMCA’s safe harbors no longer apply at all to any service that includes music. That can’t be what Congress intended, even if the wording of the law can be read that way.

I don’t know about that. The Gun Control Act of 1968 does not cover guns made before 1899. So anyone can buy a fully functioning cartridge firing firearm like a Mauser rifle, Smith & Wesson .38 revolver without any legal encumbrance whatsoever,

Leigh Beadon (profile) says:

Re: Re:

That’s not the same thing at all.

The whole point of DMCA safe harbors was to carve out a clear liability exception for service providers. A key component of that is that there is no duty to proactively monitor.

But if not all recordings are covered, safe harbors accomplish nothing and serve no purpose. The service provider does become liable for pre-1972 infringing works, and it does become their duty to proactively look for and eliminate them — which means looking through all works uploaded to the service.

Imagine, as a weird hypothetical to extend on your comparison, the Gun Control Act were amended (the same way the DMCA amended the Copyright Act) to state that pawn shops can buy and sell guns in sealed, unmarked containers without looking inside them (i’m not sure if that makes any sense legally but I’m stretching a bit to make the comparison). Now imagine a court said that’s true, BUT it can’t apply to pre-1899 guns since the GCA doesn’t apply to those, so you still have to open those boxes. But there’s no way to tell which boxes have pre-1899 guns and which ones don’t. Thus the new provision is effectively useless.

Anonymous Coward says:

Re: Re: Re:

Well, you don’t know what the intent was and neither do I. What the law says is that pre-1972 media, like pre-1899 guns are exempt.

What we agree on is that if you wish to avoid being sued, you better start proactively monitoring. That’s fine with me as now the grifters can no longer wash their hands in the Holy Water and claim that their willful blindness is legit.

RD says:

Re: Re: Re: Re:

“What we agree on is that if you wish to avoid being sued, you better start proactively monitoring. That’s fine with me as now the grifters can no longer wash their hands in the Holy Water and claim that their willful blindness is legit.”

No, those exemptions were put in place to explicitly protect a service provider (or hosting site) in cases where someone, like a shitheel like you for instance, might do something like upload a copyrighted work, then turn around and sue said site over the violation. Because of the action of one of its users (you, the shitheel, in this case) the site would be liable even if it had no knowledge of the specifics of what its users were uploading. If you can’t or won’t see how removing this harbor would seriously damage the internet and all it does, then you no longer need to open your yaphole to speak about these matters, as you obviously do not understand (or care. funny how “willfull blindness” is perfectly acceptable here, but a CRIME if it’s the service provider who doesn’t know (and doesn’t try to know) what is uploaded to their site.)) how the very internet you are using to spew your specious garbage actually works.

Shitheel says:

Re: Re: Re:2 Re:

Shitheel? I suppose I earned that moniker from stepping all over your arguments.

It seems like the way around this conundrum is to hold and verify uploads before publication. Like TD sometimes holds comments for moderation. I don’t see how monitoring “seriously damages the internet”. Maybe you can explain the mayhem you think will result.

That One Guy (profile) says:

Re: Re: Re:3 Re:

How about ‘the creative part of the internet, which comprises almost all of it, would grind to a halt overnight’?

Massive amounts of data is posted every single minute, and the idea that all or even a significant chunk of that could be reviewed to make sure it’s not infringing or breaking some law is completely insane, and that’s going off of the best case scenario, that it’s easy to spot what is and is not an infringing/illegal file/video/song, which it most certainly is not a lot of the time, as demonstrated by all the completely bogus DMCA claims targeting anything and everything.

Rikuo (profile) says:

Re: Re: Re:5 Re:

Imagine if it was a world where most people carry a cell phone with a camera and microphone and most people use Facebook and other sites to upload their photos and videos…oh wait, that is the real world!
Tell me how sites would be able to check the BILLIONS of user generated works that are produced every day? Without going into some sort of horrendous queue where you take a photo, upload it but it’s only available to view five years later.

There’s a lot more content floating around the intertubez than just Hollywood movies. A LOT MORE.

horse with no name says:

Re: Re: Re:6 Re:

I hear you, but you are making excuses.

User generated content, in terms of number of files is huge. In terms of piracy and storage on a file locker, it’s a blip. Why would anyone use a file locker for what is better done through social networking? More importantly, how much money would a hosting company make charging access to your cell phone snaps and videos? Unless you are porking hollywood celebs, I doubt anyone would pay.

The business models tell the story. If they are charging to access instead of charging to store data, then they are betting that your data has value to a wide audience.

A site like facebook can check the source of an image pretty quickly as it’s encoded in the image if you took it with your smartphone. They have minimal risk here. Clearly, a photograph taken today isn’t going to violate a sound recording copyright from before 1972, right?

It seems like your point is not making sense.

Anonymous Coward says:

Re: Re: Re:7 Re:

The business models tell the story. If they are charging to access instead of charging to store data, then they are betting that your data has value to a wide audience.

That is exactly what publishers, labels and studios do, and it is not illegal.

A site like facebook can check the source of an image pretty quickly as it’s encoded in the image if you took it with your smartphone

That does not tell them whether or not it is a photograph that infringes copyright, or whether the photo or movie was actually created on the phone.

You seem to think web sites should be able to detect copyright infringement by magic, when the owners of copyright cannot reliably identify their own works.

Anonymous Coward says:

Re: Re: Re:5 Re:

Not hard to imagine at all.

The biggests datasets in the world are about climate and census, scientists all over the world transfer zetabytes of information each and every year.

People use those databases to see population density, calculate property value, project crop yields, planing etc.

Entertainment is just a drop in the bucket as this video tells you.

The Relative Size of Internet Data

or this one.

Largest Databases in the World

I dare you plot the data and see what it comes out of it, you be surprised to know that the internet traffic by a majority is not about entertainment but useful data that goes out to everyone every second.

So to answer you question about what it would be like, I guess it would be a more productive and useful internet that already is.

Rikuo (profile) says:

Re: Re: Re:3 Re:

Of course a guy like you leaves out some important details. You say “verify first” as if it really is that simple.
First, who verifies?
Second, how? There is no such thing as a central copyright database.
Third, this ignores fair use/fair dealing.
Fourth, this ignores orphan works.
Fifth, this would be a massive curtailment of free speech. This sorta happened to me a few months ago. I uploaded a video I had shot myself back in February of 2012, applied to earn money through ads, but only recently heard back. I was rejected. I suppose I could have registered my copyright but I didn’t feel like it. Now, in the sense of ads, I can see why I got rejected, but your argument is over the making of speech. Imagine if I had to wait that long just to upload and publish the video at all. There’s tens of billions of works uploaded every week, all created by the common people and not a one of those people would take the time to register.

Anonymous Coward says:

Re: Re: Re:3 Re:

If you plot all data that is not entertainment content and then plot all data that is the non-entertainment data is so big that makes entertainment data look like Pluto besides the Sun.

The biggest dataset in the world is census data did you know that?

Zetabites of information flowing and not all are entertainment, so for a minor part of it you want to spoil everything what a nice guy you are.

Anonymous Coward says:

Re: Re: Re:2 Re:

You seem to have no concept of how much data is uploaded to the Internet every minute. The volume is literally impossible to monitor.

Guess what? That’s not my fucking problem. Sounds like a faulty business model amongst the grifters. Maybe they need to adapt? Step 2, anyone?

Anonymous Coward says:

Re: Re: Re:3 Re:

“Faulty business model” being that the internet is too popular?

You’re right, let’s kill the internet since it’s too big for any one entity to monitor at all times. Next we can move on to video tapes since there are too many of them to monitor at all times

Maybe when we’re bashing on stones in a cave, much like you would enjoy of course, we can outlaw cave paintings because there would be too many of them to monitor as well.

Rikuo (profile) says:

Re: Re: Re:3 Re:

Guess what? Your failed business model is not my problem. Maybe you need to adapt. To enforce your business model is to massively restrict, if not cut off entirely, the ability to make speech.
Verify…yeah, either Youtube can somehow verify the 40 hours of video uploaded per minute, or it puts everything into a queue. Have footage of a cop gone bad? Well get in line buster! Looks like…we have a spot open two years from now! And even if someone looks at it…what are they supposed to do? They can’t determine if its infringing. What’s that? You didn’t register the copyright? Well, to make sure Google retains its safe harbours, since there’s no registration, an automatic rejection it is!

Jeebus…the amount of harm you want the rest of the world to suffer just so your failing business model can last a bit longer, even after all the evidence Techdirt has presented.

Anonymous Coward says:

Re: Re: Re:9 Re:

This is all part of AC’s grand scheme to copyright laughter. That’ll show those kids in first grade who always laughed at him!

If only I could copyright laughter. Think of millions I’d make suing the poor bastards who had the misfortune to sit in on one of your gigs.

Cowards Anonymous says:

Re: Re: Re:

I don’t get how this court can conclude that the DMCA ever restricted the rights or remedies available prior to 1972 rather than expanding them.

Could a copyright holder pre-1972 have sued AT&T because one of their customers sang “Happy Birthday” to their relatives without permission of the copyright owner? Why not, AT&T is the service provider and thus would have the duty to monitor every phone call to make sure nobody sings “Happy Birthday” without permission. If an infringement occurred, AT&T would be required to disconnect the caller immediately to mitigate the infringement or be held liable. Was that the law then, or did it become a new power later?

I argue that the DMCA and laws like it expand the rights and remedies of the copyright holder, at least when taken as a whole. It grants copyright holders the power to issue takedowns of infringing (and non-infringing) works with very limited oversight in addition to the original power to track down the infringer through discovery and sue them directly. The safe harbor effectively allows takedowns to occur without the service provider becoming liable for that content.

Therefore, the ruling in incorrect as a matter of law the way my (nonlawyer) eyes see it.

fenixbrood (profile) says:

Re: Re: Re: Re:

Could a copyright holder pre-1972 have sued AT&T because one of their customers sang “Happy Birthday” to their relatives without permission of the copyright owner? Why not, AT&T is the service provider and thus would have the duty to monitor every phone call to make sure nobody sings “Happy Birthday” without permission. If an infringement occurred, AT&T would be required to disconnect the caller immediately to mitigate the infringement or be held liable.

Yes AT&T would be liable. Youtube would be liable to Viacom, if they have anyone singing Happy Birthday in a video.

IAmNotYourLawyer (profile) says:

Re: Re: Re: Re:

I argue that the DMCA and laws like it expand the rights and remedies of the copyright holder, at least when taken as a whole. It grants copyright holders the power to issue takedowns of infringing (and non-infringing) works with very limited oversight in addition to the original power to track down the infringer through discovery and sue them directly. The safe harbor effectively allows takedowns to occur without the service provider becoming liable for that content.

First, whether or not on the whole copyright holders are in a stronger position post-DMCA, that’s not the standard. 17 USC 301(c) states that “any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067″. Emph. added. The question isn’t whether the total bundle of rights is stronger/weaker, but if any particular right is weaker.

Second, that “expansion” of rights you cite isn’t actually an expansion. Copyright holders already had the ability to send a complaint about infringing material; the takedown notice wasn’t a grant of a new right- remember, a takedown notice does not actually force a service provider to remove content. With the DMCA, takedown notices are actually much weaker for the copyright holder because now you can’t sue the service provider because of the DMCA safe harbor provision. A pre-DMCA threat to a service provider to sue has leverage; a post-DMCA threat doesn’t have as much.

TheLastCzarnian (profile) says:

Who has the power?

If a ruling like this was to affect other sites like YouTube, what do you think the outcome would be?

People are much more critical of copyright today, in spite of (because of?) the ?IAA educational campaigns.

The public outrage caused by a YouTube lockdown may just cause a serious scaling back of copyright law, rather than greater compliance.

Copyright maximalists, be careful what you wish for.

Anonymous Coward says:

seems like two problems here. the first one is definitely the way the DMCA is worded. Congress are never explicit because if they were, it would take away the uncertainty whereby the entertainment industries can get away with being arse holes, making them come out more honest
2ndly letting those who do not understand something make decisions that affect that something and the effects of that something. i’m not a doctor, so i dont make a medical diagnosis. if i knew nothing about how the internet works, i wouldn’t make decisions that could break it. such is the reasoning here.

out_of_the_blue says:

HA! No more "safe harbors", eh, pirates?

And yet again based on common law: “there is no reason to conclude that Congress recognized a limitation on common-law copyrights”. — Now, WHO here has been pointing up common law? … Was it Mike with his 15 years of complaints? No. Some minion? No. — Oh, it was your present writer!

So guess it’s time to use this from Cheezburger:
https://i.chzbgr.com/maxW500/6522441728/h020FC9A1/

Anonymous Coward says:

Re: HA! No more "safe harbors", eh, pirates?

I might just save this comment so when a judge recognizes that this is pure madness and overturns it, I can adequately drink your tears when you get all flustered and explode in the comment section with “BAWWW DUMB ACTIVIST PIRATE SATAN JUDGES BETRAYING MY BELOVED MUSIC INDUSTRY WHY DO JUDGES HAVE TO BE SUCH FREETARDS?”

I’ve already done the same thing with bob, don’t let me down with your future whining.

Anonymous Coward says:

Re: Re: Get ready

Oh bullshit. Any file transfer site can make clear what the law is, require proof of uploaders identification, and continue doing business. If transferred files are legal, there is no problem. If illegal? Well, then the uploader deals with the consequences, and is a dipshit.

Marcel de Jong (profile) says:

Re: Re: Re:3 Get ready

If you were to post lyrics of songs on this message board, that’d be copyright infringement, unless you can add proof that you wrote those lyrics.

But since you’re anonymous, Techdirt can’t vouch for the legality of the comments, thus would have to put ALL comments in a queue, and have to actively moderate each and every comment, in case someone were to infringe on copyright. All because the MPAA and the RIAA are afraid they might have to do some actual work.

AzureSky (profile) says:

the way i see it

the way i see it, we need the DMCA to become such a pain in the arse, such a huge internet crippling issue that the general public start to notice and rebel.

once this becomes a clear election issue you will see politicians acting like they did with sopa/pipa/cispa, a bunch who where for it will magically say it was never a good idea if only to keep from facing the possibility they wont get elected the next go around.

Rapnel (profile) says:

Safe Harbors?

While I get it I don’t think I’m getting it. These large sites offering these services seem to be only interim middlemen anyway. I think what I mean is that technology is not moving backwards and, let’s see now, 1972 + 14 + 14 = 2000. This nightmare’s just getting going for information control folks. You’re not going to need any YouTubes for very much longer (at least in their current manifestation). While I may be dead before I can use it (or not given the last two decades) we’re going to be all meshed up here shortly.

horse with no name says:

Don't build your business on a single clause of a law

Grooveshark and others have built their business on willful blindness, using the DMCA safe harbor as their protection. Now they need to wake up, because the law only applies to newer works.

Maybe they should have built their business on sound business models, and not on taking advantage of one poorly thought out section of DMCA.

Rekrul says:

The last big news in the ongoing fight between Universal Music Group and Grooveshark (and its parent company Escape Media) came back in July, when a New York court rejected UMG’s argument that the DMCA’s safe harbors didn’t apply to pre-1972 sound recordings, because, technically, those recordings are not covered by federal copyright law.

So UMG can now file copyright lawsuits over recordings that aren’t covered by copyright law?

Can someone please explain this bit of wisdom to me?

Anonymous Coward says:

Re: Re:

“So UMG can now file copyright lawsuits over recordings that aren’t covered by copyright law?

Can someone please explain this bit of wisdom to me?”

They are not covered by FEDERAL copyright law. In this case they are trying to sue based on common law copyright. According to Wikipedia, “Common law copyright is also the term used in the United States to refer to most state law copyright claims.” So, I guess they’re suing based on a state copyright law.

IAmNotYourLawyer (profile) says:

Re: Re:

In a nutshell, there are both federal and state level copyright laws. The (federal) Copyright Act of 1976 generally preempted existing state level copyright laws, and created a uniform, federal system that is the one that we usually think of. However, there were exemptions to this preemption (see http://www.copyright.gov/title17/92chap3.html#301), which means that the state laws would still be in effect.

UMG claimed violations under NY state copyright for works that were not preempted by the federal statutes. Grooveshark argued it was protected under the federal DMCA safe harbor provision, but NY appellate court has now rejected that.

Karl (profile) says:

Re: Re:

If the DMCA doesn’t apply to pre-1972 recordings, then providers can simply ignore takedown notices, right?

They can do that now, in fact. Failing to follow the DMCA doesn’t automatically make you liable for infringement.

But if indeed pre-1972 recordings aren’t covered, then you basically have to take down all of them, whether told to or not. Otherwise, as this court makes clear, even a single pre-1972 sound recording means you can get sued.

Would you lose the lawsuit? Maybe yes, maybe no – it depends entirely on how state law determines vicarious liability. And if you win in one state, all the copyright holder has to do is bring a suit in another state with more favorable laws.

And, of course, even if you win, the costs of the lawsuits can put you out of business. Look at Veoh.

horse with no name says:

Re: Re: Re:

You just proved my point. DMCA is the only reason any of these sites can exist. They skirt liability by all claiming to be service providers, when in reality they are publishers and distributors.

He who lives by the sword, dies by the sword. Good bye Grooveshark, try not to bleed out on the carpet on the way out.

Karl (profile) says:

Re: Re: Re: Re:

DMCA is the only reason any of these sites can exist.

If by “any of these sites” you mean Google search, YouTube, Soundcloud, Flickr, DeviantArt, Wikipedia, Facebook, Twitter, or any site with user-generated content, then you’re right.

And it’s a very, very good think that they can all “skirt” liability.

Good bye Grooveshark, try not to bleed out on the carpet on the way out.

It amazes me that you think Grooveshark’s death would be good in any way for content creators. They certainly have issues, but they are at least attempting to work out deals with copyright holders. (Before the deal with EMI fell through, Grooveshark had already given EMI $2.3 million – money that it wouldn’t have otherwise.)

This is a perfect example of killing the goose that laid the golden eggs.

Miquel (profile) says:

The purpose behind the safe harbors

>not to mention the massive loss to our culture from having a huge chunk of music history mostly vanish from the internet.

Well, while the DMCA did intend to shield UGC sites from monitoring obligations, “saving” this huge chunk of unlicensed music was certainly *not* the purpose of the DMCA, was it?

Anonymous Coward says:

Re: Re: The purpose behind the safe harbors

Promoting the proliferation of culture and artistic output is the purpose of all copyright law. Or at least it is supposed to be.

Wow. So you think we should ignore the actual text of the statute and instead just go with whatever you decide promotes “culture and artistic output” best?

Anonymous Coward says:

Re: Re: Re: The purpose behind the safe harbors

Try reading the Constitution, where the justification for federal copyright is given.

In any case, it’s not like lawmakers just pop a bill out of thin air without discussing its merits. Even if a law doesn’t list its goal, generally the intention will be on record somewhere.

And if you can’t address the intention behind a law and analyze if the law is achieving whatever goal it has, it is a bad law.

Karl (profile) says:

Re: Re: The purpose behind the safe harbors

It won’t disappear if the proper licensing fees are paid.

There are no “proper licensing fees” for sound recordings. Unlike the statutory rates for songwriters, the copyright holders for sound recordings can charge whatever they like as a “license,” secure in the knowledge that they have a monopoly on the recordings.

In fact, the issue with Grooveshark is that UMG apparently won’t license any of their music to them, at any price.

Violated (profile) says:

Not a safe harbour

So in this Copyright War pre-1972 music has just become a Weapon of Mass destruction.

I am just left thinking I have 1000+ pre-1972 music songs where it is easy enough to reencode these into a vast array of formats and to then upload these to hundreds of sites.

Then UMG can go about suing every site they want where even in a few cases complete service destruction can be had. Yes even their beloved YouTube can be attacked.

Someone needs to fix that law and to be quick about it.

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