Recall that one of the reasons that Jim Hood issued an "administrative subpoena" to Google is that they refused to block the TLD's of "pirate sites."
Never mind that thousands of musicians have use TPB to promote their own music. (You may think it's stupid, but it's their right to do it.) Blocking TBP altogether would infringe on the rights of these artists to distribute their works to the public, which is a fundamental human right.
But never mind that. According to this Anonymous Coward, the internet isn't bowing down enough to the wills of the monopsony labels, so fuck it. Let it die.
He calls everyone on the government side criminals, and then says that criminals should get a bullet to their apparently empty skulls.
When you put the two together, there is a clear threat, and one that suggests action against government agents.
This is simply not true. The first quote said that people on the government side "should have grand theft and / or larceny charges filed against them," which is not a threat of violence.
The second quote said that "a bullet to their apparently empty skulls" could be the consequence of their actions - by someone who is not the poster.
This is clearly hyperbole (and pretty ridiculous IMHO), and is clearly not a direct threat to the agents involved by the commenter.
No reasonable person would conclude that this poster was about to go out and shoot any of the agents involved.
Even if it could be interpreted as such, it does not rise to the level of a "true threat." For example, here's a quote that is much more of a "clear threat," this one against the President:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.
Yet this statement is not a "true threat," it is protected speech. The Supreme Court reached that decision in Watts v. United States.
Here's another example:
If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.
This, again, is protected speech. See NAACP. v. Claiborne Hardware.
Do you know for a fact (absolute) that this guys comments are NOT the first step in doing something really bad?
Luckily for every single human in the U.S., this is not even close to the standard for investigating anyone. There is no way for anyone to know if any speech is "NOT the first step in doing something really bad."
The record labels not only generally pay (based on their contracts) but also provide huge sums of money UP FRONT, pre-paying artists to record for them.
This bullshit has been debunked so many times, it's a bad joke.
The "huges sums of money UP FRONT" (the advances) are not used for "pre-paying artists to record for them." They are used to pay for the costs of recording the album.
Equipment, recording studio payments, payments to record producers, studio musicians' wages, and so on, all come out of that advance. And often it is the labels, not the artists, who determine these things (they bring producers on board, choose the recording studio, etc). Whatever is left over goes to the artists - and their representatives (managers, publicists, assistants, whatever).
And the "pay" (royalties) doesn't accrue until after that advance is paid back out of the artist's royalty share. This varies by contract, but a good round number is 15% of the profits.
So, if you have a $200K advance - nearly all of which goes into recording the album - then artist's royalties won't accrue until the album has made about $1.3 million dollars. At that point, the label has earned over a million dollars, and the artist has earned nothing in royalties. And this doesn't count other "recoupables," such as the album artwork, music video costs, tour support, and so forth, that also must be paid back in full before the artists earn royalties.
Incorrect. Natural right says that if I create something, it's mine. Copyright only helps to more clearly define that in legal terms.
This is completely false. U.S. copyright law is not, and was never, based on the natural rights of authors:
The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive right to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policty is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.
In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly.
- H.R. Rep. No. 60-2222
It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."
First and foremost, if you follow the DMCA and remove the content, the infringement is stopped. At that moment, the very basis of a copyright infringement lawsuits has shrunk considerably, the "harm" has stopped and thus any lawsuit is based solely on the harm done before the DMCA notice. It makes the case much harder to make.
Not really. All that a rights holder has to do is show that infringement occurred, and they're eligible to collect statutory damages. And, as we saw in the Thomas-Rasset and Tenenbaum cases, statutory damages bear little to no relation to the harm done.
Second, you would also have to show that the site owner was in fact the one that posted the content.
What are you talking about? The one that posted the content can get sued, regardless of whether it was the site owner or not. (And if it is the site owner, there goes its DMCA protection.) Rights holders don't have to show it was the site owner in order to sue the user.
Third, even if they did post the content in question, a rights holder would have to prove that use in a court of law
As I said: they'd have to actually follow the law. The fact that the DMCA makes it easy to not follow the law is an argument against the DMCA.
The costs related to doing so past the costs of a DMCA notice are such that few rights holders are willing to take anyone to court.
As I said.
Sort of normal. It's US law, and generally the notices are sent by US companies or sent to US addresses.
There is no parallel requirement for rights holders. Someone can send Wordpress a takedown notice from Brazil or wherever, and they aren't required to agree to be sued in the U.S.
But, "normal" or not, it does show that the DMCA isn't designed to protect users, which was your entire point.
Of course, there is no obligation to send a counter notice. You can remove the content and call it even.
You mean, "even though you don't think you're infringing, you can shut up when the service provider removes your content, and live with the strike on your account." Yeah, that's totally fair.
almost all infringement is done ANONYMOUSLY. Youtube, instagram, and so on accounts that all point anonymous email accounts. [...] Without DMCA, service providers would not accept anonymous postings, and if sued, they would quickly give up the user information and involve them in any lawsuit. "Anonymous User sourced content" would not be a valid business model, and with end users properly identified, it's very likely that infringement would drop dramatically because few would want to take the risks.
So, you're basically saying that the Web as we know it would not exist. Bye-bye Wordpress, Reddit, YouTube, Facebook, and so forth. Bye-bye Amazon reviews, eBay listings, or comments on news sites.
Bye-bye, our First Amendment right to speak anonymously.
And bye-bye Whatever, since you're "anonymous" in that sense (I doubt "Whatever" is your legal name).
If your point was that the DMCA liability protections are absolutely essential and vital for society, then well done. If you're actually advocating against "Anonymous User sourced content," then you're pro-censorship.
I'll take that over an F- for not reading anything, which is your grade at this point in the semester.
Notice Automattic says " more than 25% of notices fail to meet those requirements" and then doesn't use an actual number or percentage when it comes to " in many cases people simply don’t have a colorable claim that infringement is taking place". It's a clear indication that this isn't the case for all of the 25%, and not even a number big enough for them to specifically mention.
You are totally full of shit, and here's why.
Obviously, Automattic can't know who actually has "a colorable claim" to infringement, and neither can you or I. But "a colorable claim" is legal-speak for "not utterly full of shit," so when Automattic says that these DMCA notices do not represent even "a colorable claim" to infringement, you can be reasonably certain that they're utterly bogus.
Notice again that they don't seem to provide much detail as to why they don't consider these claims valid.
That's detailed in the DMCA. Remember that service providers have to work with DMCA notice senders, by law, if:
ii. they provide "identification of the copyrighted work claimed to have been infringed;"
iii. they provide "identification of the material that is claimed to be infringing," and "information reasonably sufficient to permit the service provider to locate the material;"
iv. they provide "information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted."
The "reasonably sufficient" language makes it clear that you don't have to dot your i's and cross your t's; you just have to provide something sane and rational. It's easier and more straightforward than signing up for Facebook, with even less sanity checks.
And 25% of DMCA notice senders couldn't even do that. Despite the fact that Automattic provides a page where everything is laid out, in plain English, in addition to their DMCA contact email.
It is pretty much impossible to send an invalid DMCA notice in this case. Yet 25% of senders do it.
Like many service providers, Automattic provides an online form that guides a claimant in submitting a 512(c)(3)-complaint notification (https://automattic.com/dmca-notice/) - and even so, a quarter of the notices simply don’t include the necessary information.
If you go to that page, everything is laid out in plain, non-lawyerly language.
If you apply the rules to the nth degree (and Automattic apparently does) it's very easy to find fault in almost every DMCA Notice in some form or another. Those made by individual rights holders who are not familiar with the exact wording required could fail every time.
I guess you didn't bother to read Automattic's filing:
As discussed below with respect to Subject No. 30, our statistics show that more than 25% of notices fail to meet those requirements, and it is our belief that the failure comes not from overly burdensome requirements, but because in many cases people simply don’t have a colorable claim that infringement is taking place.
In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).
DMCA actually gives huge advantage to infringers and general use of copyright material, because the penalty for misuse is getting the content removed, end of discussion.
You keep saying this, and it is completely false.
The DMCA safe harbors protect service providers. Nothing in the DMCA gives any more protection to users who upload infringing content. If you upload infringing content, it doesn't matter if it's removed or not, you can still be sued if the copyright holder chooses to do so.
In fact, the DMCA makes it easier to sue infringing users.
In order to send a counter-notice, you have to agree to be sued in the U.S. It's in 512(g)(3)(D):
(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: [...]
(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
And if you send a counter-notice, and the content is ultimately found to be infringing, you are not only on the hook for damages to the copyright holder, but also to the service provider, and you automatically have to pay attorney's fees:
(f)Misrepresentations. - Any person who knowingly materially misrepresents under this section - (1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
True, this section also ostensibly protects those whose content is taken down. But as we've seen in the Lenz case, it's pretty much impossible to show that a copyright holder "knowingly materially misrepresents" that something was infringing.
So the DMCA is heavily weighted against sending counter-notices, even if the DMCA notice is utterly and completely bogus.
Additionally, the DMCA grants subpoena rights to identify infringers under 512(h). Without the DMCA, this would have to go through a judge.
Imagine if every DMCA against a YouTube video was replaced with a lawsuit
YouTube is a bad example. They have ContentID, so copyright holders don't send DMCA notices, they simply claim the content and take all the money it generates. But for the sake of argument, let's assume that wasn't an option.
As I shoed above, there is absolutely no reason that a DMCA against a YouTube video can't involve a lawsuit.
So, why aren't users getting sued left and right?
There are a bunch of answers:
1. As you said earlier: "Such a legal action would incur incredible costs". It is simply not economically feasible for rights holders to go after users through the court system. And even if they did get judgements that "cripple [infringing users] financially for the rest of their lives", those judgements still wouldn't end up paying for the legal fees.
(But they probably will be, as soon as the Rightscorps or Righthavens of the world figure out how to do it.)
2. Simply put, a single YouTube video doesn't cause enough economic damage to be worth the lawsuit. The monetary incentive for copyright holders to prevent infringement by a single user simply isn't there.
3. Copyright holders would have to actually obey the law. The DMCA makes it so easy to take down content that copyright holders even suspect to be infringing, that they simply send DMCA notices without a second thought. The penalties for doing so are trivial, if they are even enforced at all.
If they had to go through the court system, they not only have the chance of losing, but of setting precedents that they don't want, or of reiterating existing precedents that they like to pretend don't exist.
So, if the DMCA didn't exist, I doubt we'd see any more lawsuits against users than we do now. We'd only see a lot more lawsuits against service providers.
Don't pretend any of this benefits users (infringing or not). It doesn't.
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.