According to Slater's (original) account, he was not the photographer. The monkey (presumably Naruto) was the photographer. But monkeys can't hold a copyright, so this work is in the public domain.
But even if Slater were the photographer, acknowledgement has nothing to do with copyright infringement. People who upload a Metallica song to the Pirate Bay "acknowledge" that Metallica is the author. Do you think that they're not infringing?
And, even if this were the case, pretty much every single story about this saga has "acknowledged" Slater. So, you're simply wrong.
use of the whole works
Even assuming the copyright goes to Slater (which it doesn't), use of an entire image does not mean it's not fair use.
detrimental to the financial effectiveness for the photographer
Copyright does not arise from the exertion of labor. See e.g. Feist v. Rural.
no element of Fair Use.
Every element of fair use. The photo was used for commentary and news reporting, both of which are explicit examples of fair use in the statutes.
Mike Masnick is an infringer, willfully so, and because of this he is also liable for criminal prosecution.
Willfully displaying a picture is not the same as willful infringement. Even if it were (which it's not), and even if this were not fair use (which it is), it violates only the display right. That is at most a misdemeanor under criminal copyright law.
You really have no idea what you're talking about.
Digital phonorecord deliveries implicate the public distribution rightn under Section 106(3). It's silly to argue otherwise.
The issue is whether this applies only to digital downloads (a la iTunes), which everyone agrees it does, or whether it also applies to digital streams. For example, streaming video sites are generally considered to implicate the performance right, but not the reproduction right.
I agree that it does, but only because of the definitions section in 115 itself. (I quoted it below.)
The whole situation is even more complicated than the article describes. Unsurprisingly, Lowery's lawsuit doesn't bring these complications up, either, since they both favor Spotify.
First of all, it doesn't consider the case where there are multiple songwriters. I'll let the FMC explain it:
There are pros and cons for licensees and licensors with regard to the compulsory mechanical. On the positive side, it can help streamline the process of obtaining licenses, which is not only important to services that offer expansive catalogs, but also labels who release recordings that embody compositions with an often staggering number of co-writers and co-publishers. [...] Publishers' list of negatives may can include rates that they belive do not reflect market value, the hassles of monthly accounting and the fact that a user needs only to serve one publisher, even if there are multiple parties who own a portion of the work. It’s up to the publisher who was served notice to pay any co-publishers.
Given that many songs have two authors (including most pop songs), and other songs have many many more, this almost certainly accounts for the majority of unlocated songwriters.
Second of all, it doesn't go into the contracts between Spotify, the Harry Fox Agency (HFA), and the publishers/songwriters they represent (HFA calls them "affiliates").
HFA offers a standard license for streaming in limited quantities. And, as a licencee, you are explicitly exempt from sending NOI's:
Upon issuance of this license, you shall have all the rights which are granted to, and all the obligations which are imposed upon, users of said musical work under the compulsory license provision of the Copyright Act, after phonorecords of the copyrighted work have been distributed to the public in the United States under the authority of the copyright owner by another person, except that with respect to Interactive Streams thereof made and distributed hereunder: [...]
3. You need not serve or file the notice of intention to obtain a compulsory license required by the Copyright Act.
HFA also takes over this duty if you sign up with their Slingshot service. In that case, I don't know if the songwriter even needs to be licensed by HFA; HFA might send out the NOI's on your behalf.
Larger streaming services (like Spotify) must sign direct deals with HFA, but I would be utterly shocked if there wasn't similar language in their contract. So, if Spotify is using any songs that are licenced by HFA, they almost certainly don't have to file NOI's.
Of course, that only applies to songs that are licenced by HFA. True, HFA does administer the licenses for the vast, vast majority of commercial songs, but not all of them. (In fact, if your song isn't published by a record label, you can't become an affiliate.) There is certainly going to be a factual issue as to whether HFA represented that they could license songs (or did in fact issue license for songs) where they didn't administer 100% of the rights.
It should also be noted that the HFA contract also specifies that HFA has a right to audit their licensees. So, it's not like they weren't aware of what songs Spotify was playing.
I'm guessing that there was some sort of problem on HFA's end, since Spotify is building their own database, and negotiating with the NMPA, instead of relying on HFA like they previously were. (But who knows, it could also be because HFA was recently bought by SESAC.) Whatever the issue, if this does become a class-action lawsuit, this is going to be a pretty tiny class. It would be a class composed of songwriters who are played on Spotify but not represented by HFA.
Does any of this apply to Lowery's songs? Perhaps, perhaps not. The particular songs in the lawsuit, at least, do not come up if you do a public search for them in HFA Songfile. (Unlike his Camper Van Beethoven songs.)
Regardless, I don't think he has a snowball's chance in Hell of proving "willful" infringement.
Also, this is the first I've heard the theory that non-interactive streams were not covered by statutory mechanicals. HFA explicitly says they are, and most industry folks seem to believe that as well. It also seems pretty clear in the statutes:
[(c)(3)](C) Proceedings under chapter 8 shall determine reasonable rates and terms of royalty payments [...]. Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. [...]
(d)Definition. - As used in this section, the following term has the following meaning: A "digital phonorecord delivery" is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.
(a) Transitory Digital Network Communications. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections[...]
This describes what Cox is doing.
Also, to the other AC: it doesn't matter if Cox is a "Level 3" provider or not. DMCA immunity is defined by an ISP's function, and since this is the function of Cox's service, they are eligible for DMCA immunity under this section.
The "notice and takedown" provisions are not in 512(a) at all. In fact, they are defined in 512(c)(3):
(c) Information Residing on Systems or Networks At Direction of Users. -
(1)In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider - [...]
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. [...]
(3) Elements of notification. - (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: [...]
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
It explicitly applies only to "material" that is to be "removed or disabled." And it applies only to service providers that store that "material" on their "system or network."
In other words, not to service providers as defined in 512(a).
There are two other functions of a service provider where the "notice and takedown" provisions must be followed - 512(b) and 512(d):
(b) System Caching. -
(1)Limitation on liability. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider [...]
(2)Conditions. - The conditions referred to in paragraph (1) are that - [...]
(E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in subsection (c)(3) [...]
(d)Information Location Tools. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider - [...]
(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.
Again, these explicitly refer to "material" that is "to be removed or access to which is to be disabled."
And again: not to service providers as defined in 512(a).
Yes, this is black-letter law. It is clear and unambiguous. But don't just take my word for it:
On July 24, 2002 the RIAA served Verizon with a subpoena issued pursuant to 512(h), seeking the identity of a subscriber whom the RIAA believed to be engaged in infringing activity. The subpoena was for "information sufficient to identify the alleged infringer of the sound recordings described in the attached notification." The "notification of claimed infringement" identified the IP address of the subscriber and about 800 sound files he offered for trading; [...] and asked for Verizon's "immediate assistance in stopping this unauthorized activity." "Specifically, we request that you remove or disable access to the infringing sound files via your system." [...]
Notably present in 512(b)-(d), and notably absent from 512(a), is the so-called notice and take-down provision. It makes a condition of the ISP's protection from liability for copyright infringement that "upon notification of claimed infringement as described in (c)(3)," the ISP "responds expeditiously to remove, or disable access to, the material that is claimed to be infringing." [...]
Verizon maintains the two subpoenas obtained by the RIAA fail to meet the requirements of 512(c)(3)(A)(iii) in that they do not – because Verizon is not storing the infringing material on its server – and can not, identify material "to be removed or access to which is to be disabled" by Verizon. [...]
No matter what information the copyright owner may provide, the ISP can neither "remove" nor "disable access to" the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.
The RIAA contends an ISP can indeed "disable access" to infringing material by terminating the offending subscriber's internet account. This argument is undone by the terms of the Act, however. As Verizon notes, the Congress considered disabling an individual's access to infringing material and disabling access to the internet to be different remedies for the protection of copyright owners, the former blocking access to the infringing material on the offender's computer and the latter more broadly blocking the offender's access to the internet (at least via his chosen ISP). Compare 17 U.S.C. 512(j)(1)(A)(i) (authorizing injunction restraining ISP "from providing access to infringing material") with 17 U.S.C. 512(j)(1)(A)(ii) (authorizing injunction restraining ISP "from providing access to a subscriber or account holder ... who is engaging in infringing activity ... by terminating the accounts of the subscriber or account holder"). [...]
Finally, the RIAA argues the definition of "[internet] service provider" in 512(k)(1)(B) makes 512(h) applicable to an ISP regardless what function it performs with respect to infringing material – transmitting it per 512(a), caching it per 512(b), hosting it per 512(c), or locating it per 512(d).
This argument borders upon the silly. The details of this argument need not burden the Federal Reporter, for the specific provisions of 512(h), which we have just rehearsed, make clear that however broadly "[internet] service provider" is defined in 512(k)(1)(B), a subpoena may issue to an ISP only under the prescribed conditions regarding notification. Define all the world as an ISP if you like, the validity of a 512(h) subpoena still depends upon the copyright holder having given the ISP, however defined, a notification effective under 512(c)(3)(A). And as we have seen, any notice to an ISP concerning its activity as a mere conduit does not satisfy the condition of 512(c)(3)(A)(iii) and is therefore ineffective. [...]
III. Conclusion For the foregoing reasons, we remand this case to the district court to vacate its order enforcing the February 4 subpoena and to grant Verizon's motion to quash the July 24 subpoena.
This is not the only court to reach exactly the same conclusions:
The dispute arose when the Recording Industry Association of America (RIAA) requested the clerk of the district court to issue subpoenas under 512(h) to Charter Communications, Inc. (Charter),1 in its capacity as an ISP, requiring Charter to turn over the identities of persons believed to be engaging in unlawful copyright infringement. The district court issued the subpoenas and denied Charter's motion to quash. We reverse. [...]
As stated above, the notification provision is found within 512(c), or the storage-at-the-direction-of-users safe harbor.5 The notification provision is also referenced, however, in two other safe harbors - subsections (b) and (d) - the "system caching" and "linking" safe harbors. Each of these three subsections protect an ISP from liability if the ISP "responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in (c)(3)." 17 U.S.C. 512(b)(2)(E), 512(c)(1)(C), and 512(d)(3) (emphasis added). In other words, a specific purpose of the notification provision is to allow an ISP, after notification, the opportunity to remove or disable access to infringing material and thereby protect itself from liability for copyright infringement. Therefore, as one might expect, each safe harbor which covers an ISP function allowing the ISP to remove or disable access to infringing material (i.e., the storage, caching, and linking functions) refers to the notification provision and contains a remove-or-disable-access provision. [...]
Section 512(a) does not reference the notification provision of 512(c)(3)(A), nor does it contain the remove-or-disable-access provision found in the three safe harbors created for the storage, caching, and linking functions of an ISP. The absence of the remove-or-disable-access provision (and the concomitant notification provision) makes sense where an ISP merely acts as a conduit for infringing material - rather than directly storing, caching, or linking to infringing material - because the ISP has no ability to remove the infringing material from its system or disable access to the infringing material.
On September 19, 2014, Rightscorp obtained from the United States District Court for the Central District of California a subpoena (the "Subpoena"), pursuant to the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. 512. 3 The Subpoena seeks the "name, address, telephone number, and email address sufficient to identify the alleged infringers of copyrighted sound recordings identified by [Internet Protocol ("IP")] addresses in the notices attached to ... th[e] Subpoena." ([1.1] at 2). The notices attached to the Subpoena detail 1,326 separate instances of alleged copyright infringement by CBeyond customers using 71 unique IP addresses.
On October 17, 2014, CBeyond filed its Motion to Quash. CBeyond argues, among others, that Section 512(h) authorizes issuance of a subpoena only to an ISP that performs a storage function, and because CBeyond does not store or host the allegedly infringing materials referenced in the Subpoena, the Subpoena is not valid. [...]
A notification that satisfies Section 512(c)(3)(A) is thus a mandatory part of the subpoena request and a condition precedent to issuance of, and compliance with, a subpoena under Section 512(h). [...]
Section 512(a), on the other hand, does not reference Section 512(c)(3) and does not contain a requirement that the ISP remove or disable access to allegedly infringing material. This is likely because Section 512(a) applies "where an ISP merely acts as a conduit for infringing material - rather than directly storing, caching, or linking to infringing material - [and thus] the ISP has no ability to remove the infringing material from its system or disable access to the infringing material." [...]
That Section 512(c)(3)(A) notice is referenced in Sections 512(b)-(d), but not in Section 512(a), supports that the notice requirement is related to an ISP’s participation in the storage of allegedly infringing materials. [...]
IT IS FURTHER ORDERED CBeyond’s Motion to Quash is GRANTED.
It is not only black-letter law, but well-settled case law as well.
You are correct, however. There is a requirement in 512(f) to terminate repeat infringers:
(i) Conditions for Eligibility. -
(1)Accommodation of technology. - The limitations on liability established by this section shall apply to a service provider only if the service provider -
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers [...]
But, as has been proved above, a 512(a) ISP's definition of a "repeat infringer" is not related to a DMCA notice - since those notices do not have anything to do with that type of ISP.
Also note the phrasing: "who are repeat infringers," rather than "who are claimed to be repeat infringers" (the language used in 512(c)(1)(C), among other places). So, without using takedown notices, and with the statutory requirement that users are actual (not accused) infringers, how is a 512(a) ISP to determine who to kick off the net?
The answer is likely found in 512(j)(1)(A). This was the section referred to in RIAA v. Verizon. And it only applies to court-ordered injunctions. Here is the relevant statutory text:
(j)Injunctions. - The following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section:
(1)Scope of relief. [...]
(B) If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms:
(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is using the provider's service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.
A logical reading of the DMCA would therefore suggest that a court-ordered injunction is required for an 512(a) ISP to terminate a user's account.
Now, those are the "takedown" provisions. What about the "putback" provisions - the ones that (theoretically) give users the right to contest the claims of copyright holders? These are covered in 512(g):
(g) Replacement of Removed or Disabled Material and Limitation on Other Liability. -
(1)No liability for taking down generally. - Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.
(2)Exception. - Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider - [...]
(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; [...]
(3)Contents of counter notification. - To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following: [...]
(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
Again: this applies only to "material," and you can only contest a notice sent under 512(c)(1)(c) - which doesn't apply to 512(a) ISP's.
So my statement was absolutely correct. If this ruling stands, all it takes is accusations of infringement, and a user whose entire internet has been shut down would have absolutely no recourse whatsoever.
They make a legal statement, and the customer at that address can argue that they did not do anything, or provide proof that what they were doing was acceptable
No, they don't, and no, they can't.
Cox is providing "Transitory Digital Network Communications" under 512(a). DMCA takedown notices explicitly do not apply to 512(a) providers.
The DMCA "notice and takedown/putback" system only applies to providers that host content or search engines: 512(c) and 512(d), respectively. They do not apply to any other kind of service provider.
DMCA provides for the opportunity to counter that statement.
No, it does not. The "putback" procedure is in 512(g), and it applies only to "material that has been removed or to which access has been disabled." It does not apply to restoration of the entire service.
You are wrong, as a matter of black-letter law.
If this ruling stands, all it takes is accusations of infringement, and a user whose entire internet has been shut down would have absolutely no recourse whatsoever.
this is precisely how the conspiracy theorists turn lawsuits against a company, into being controlled by the company they're suing. According to nutjobs like Orlowski, any "cy press" settlement is nothing more than Google giving money to Google shills, rather than to the actual "victims" of Google.
So if the EFF wins a suit against Google, they're getting money, and if they're getting money, they're obviously in bed with the people who gave it to them. Therefore, EFF is a shill for Google. Quod erat stupidus.
First, copyright is not property under the Constitution: it is a right. That's why it is called copyright.
No, it is not.
Actually, in the legal sense, it is a right. It is the type of "right" that is usually called a "claim right" (a right that creates obligations in others to actively support that right, e.g. the right to a public education) rather than a "liberty right" (a right to act without interference, e.g. the right to free speech).
It is simply not a "right" under the colloquial definition. Colloqually, we say that something is a "privilege" if it is created by an authority (like a government, school, or employer), but a "right" is innate and inviolable, held by the virtue of being a person (e.g. "human right").
So, copyright is a "privilege" in the colloquial sense, and a "right" (specifically a "claim right") in the legal sense. And, the things you mentioned - free speech, privacy, freedom of/from religion - are "rights" in the colloquial sense, and "liberties" in the legal sense.
No, he wasn't. True, Assange was criticizing the EFF, but he never said they received "more than half of its annual income" from Google. (In fact, he said "The EFF is a great group, and they’ve done good things for us, but nonetheless it is significantly funded by Google, or people who work at Google.")
And, yeah, this is precisely how the conspiracy theorists turn lawsuits against a company, into being controlled by the company they're suing. According to nutjobs like Orlowski, any "cy press" settlement is nothing more than Google giving money to Google shills, rather than to the actual "victims" of Google.
So if the EFF wins a suit against Google, they're getting money, and if they're getting money, they're obviously in bed with the people who gave it to them. Therefore, EFF is a shill for Google. Quod erat stupidus.
You're taking that entirely out of context. Here is the full sentence:
Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not.
No court of law has ever said that it is a "legal notice of infringement." It is not. It is an extrajudicial notice of belief of infringement.
Nor is the "putback" requirement an "appeals process." It is an extrajudicial notice of belief of non-infringement.
A use of a copyrighted work is not infringing until it is found to be so in a court of law.