Mark Cuban, Google, YouTube, Morons → Re: Just stock talking.......

Actually, Kamm is 100% correct. The DMCA SPECIFICALLY gives 'safe harbor' to any ISP/content provider, providing the provider promptly removes any copyright content upon notification.

Again, the LEGAL OWNER of the content must submit the request. They can't use a 3rd party lamer like websherrif or others. The actual owner of the content is the ONLY one who can take down the content. E-bay, on the other hand, doesn't follow the rules, and will stop any auction if anyone complains. E-bay sucks thoogh.

I'm sorry, karlmarx.. I believe you have the intent of the ISP/host clause mis-understood. Before this change, ISPs that were hosts to someone else providing the content, at one time, were liable. Basically, 'innocent' providers as they only provided the pipe to their customers and their customers put up the illegal content. This was revised to say that it wasn't fair to the ISP to be liable unknowingly via their customers illegal activities.

Fair enough. If someone notifies the ISP and they remove it.. Then they are no longer liable.

YT is not an ISP/Host in this manner. They are providing the content.

See below from here if you are still confused:
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(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, if -

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

(5) the material is transmitted through the system or network without modification of its content.


edit: fixed word

I'm unclear on your argument that "YT is not an ISP/Host in this manner. They are providing the content." Although they are providing content, that content is first uploaded by a YT user and then offered to whomever wants to view it. In this regard, YT is simply allowing information to pass through their systems from one user of the service to another person. Under the "transitory digital network communications or service providers" safe harbor provision that you cite (512(a)), YT would qualify as a service provider and thus could proceed to show a defense under the safe harbor provisions.

I guess I'm not sure how you've come to the conclusion that YT is the originator of the content and not merely a provider allowing the information to pass through its systems.

The more I read 512(a) the more I think it doesn't apply here. In fact, I think 512(c), "Information residing on systems or networks at direction of users," is the most appropriate safe harbor provision (512 has 4 possible safe harbor provisions, 512(d) might apply here). In that case, the definition of a service provider is less particular than under 512(a).

Under 512(c), both Amazon and eBay have been found to be service providers (see Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (D. Wash. 2004); and Hendrickson v. eBay, Inc., 165 F. Supp.2d 1082 (C.D. Cal. 2001)). That being the case, I would think YT can easily fit the bill.

All YT would then have to do is prove the following and it's free and clear: 1) adopt a policy that provides for the termination of service access for repeat copyright infringers in appropriate circumstances; 2) inform users of the service policy; and 3) implement the policy in a reasonable manner.

Exactly my point - both Amazon and eBay have been excluded via safe harbor and YT is even less likely to be ever sued thanks to this provision - what did anybody think: why nobody big gun sued YT?

Because their lawyer told the board it doesn't worth it 'cause YT will be given the same 'help' Amazon etc got and they cannot sue it to death either because then YT will accept some B$-offer and sue back which would most likely end up in defeat for the original plaintiff Motion Picture Ass of America member.

Yes, it doesn't apply here.. None of it does.. and that was my point in my reply to Karlmarx. YT isn't an ISP, as in an "Internet Service Provider" for the purpose of the clause. They host the content.If you could provide a link to the full text of the case you sited, I would be interested in reading it. Thank you.

Even so, under 512(c), you forgot the point of:
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; .

Don't want to repeat what I already said below.

But the best thing is - it's already there!

Read it (italicized by me):

quote:

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Terms of Use

(...)
4. Intellectual Property Rights

The content on the YouTube Website, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to YouTube, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Website is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. YouTube reserves all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, ordistribution of User Submissions of third parties obtained through the Website for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the YouTube Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the YouTube Website or the Content therein.

5. User Submissions

A. The YouTube Website may now or in the future permit the submission of videos or other communications submitted by you and other users ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, YouTube does not guarantee any confidentiality with respect to any submissions.

B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize YouTube to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successor's) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website.

C. In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage YouTube or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. YouTube does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and YouTube expressly disclaims any and all liability in connection with User Submissions. YouTube does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and YouTube will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. YouTube reserves the right to remove Content and User Submissions without prior notice. YouTube will also terminate a User's access to its Website, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice. YouTube also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. YouTube may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.

D. In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

(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;

(iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;

(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

YouTube's designated Copyright Agent to receive notifications of claimed infringement is: Heather Gillette, 71 E. Third Avenue, 2nd Floor, San Mateo CA 94401, email: copyright@youtube.com, telephone: 650-343-2960, fax: 650-343-2983. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to YouTube customer service through »www.youtube.com/contact. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.

E. You understand that when using the YouTube Website, you will be exposed to User Submissions from a variety of sources, and that YouTube is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against YouTube with respect thereto, and agree to indemnify and hold YouTube, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.

F. YouTube permits you to link to materials on the Website for personal, non-commercial purposes only. In addition, YouTube provides an "Embeddable Player" feature, which you may incorporate into your own personal, non-commercial websites for use in accessing the materials on the Website, provided that you include a prominent link back to the YouTube website on the pages containing the Embeddable Player. YouTube reserves the right to discontinue any aspect of the YouTube Website at any time.

---

Source: »www.youtube.com/t/terms

Neither we - apparently you are unable to understand the meaning of the word provider which 100x more covers YT than Amazon or even eBay.

FYI: there are thousands of content etc providers out there and none of them has been sued by Motion Picture Ass of America - because they do the same what YT does: they don't permit copyright infringement but allow everything to be uploaded (how could they know at all it's illegal or legal copy?) and if it turns out to be illegal then they delete it unless the user proves its legality.

I thought it's quite easy to grasp for anybody - apparently some still cannot grasp the idea of a video content provider, free hosting provider.
That's it, nothing else holds water here - end of story.

Kamm, Wow.. Thanks for taking a perfectly good discussion to the crapper with a snotty post less anything useful to counter with. Since when was I disrespectful to you? Get a grip.

Edit: And the same thing applies to the 2 more paragraphs you just added after my response.

Thanks for your quick reply. As for links to those cases, you may be able to find them via Google, however I have access to them via a paid subscription to Lexis. Here is a link to a good summary of the Amazon case which discusses both the 512(c) safe harbor and the 512(k) definition of a 'service provider.' Based on other case-law I gleaned, the term service provider has broad application in which it is not difficult to meet. I stick by my contention that YT fits this description.

As for 512(c)(1)(B), "does not receive a financial benefit...has the right and ability to control...", I initially thought the same thing as you until I gave it a closer look.

First (c)(1)(B) has two requirements--which both must be met--to be disqualified from using the safe harbor: (1) "has the right and ability to control" the infringing activity, and (2) receives "a financial benefit directly attributable to the infringing activity."

I think you're mistaking the scope of 'control' under the first requirement and so I'll explain.

The court in Amazon (see above case) clarified this saying: "Courts have routinely held that "the right and ability to control infringing activity, 'as the concept is used in the DMCA, cannot simply mean the ability of a service provider to remove or block access to materials posted on its website or stored in its system.'"

In the context of Amazon: "Merely because Amazon could identify the zShops defendants and terminate their accounts does not mean they exercised the type of right and ability to control that would disqualify them from § 512(c) safe harbor." "[Plaintiff] notes that Amazon met with several vendors of movie posters when the zShops site was launched in 1999. Amazon encouraged these vendors to list their items on zShops. Implicit in this argument is that Amazon knew, or should have known, that movie poster vendors were solely in the copyright infringement business. As discussed above, there is no evidence to warrant such a conclusion, much less to impute that knowledge to Amazon. Without some indication that Amazon intended to pick infringing material for its site, the fact that it advertised the zShops platform does not amount to a right and ability to control the items sold there."

So 'control' under (c)(1)(B) means that the service provider was an active and knowing participant in the copyright infringement. YT must be shown to have asked or actively assisted people in uploading infringing material. I would argue the current system is passive in nature and YT is not in 'control' as the statute requires. To reiterate, "The 'right and ability to control' the infringing activity, as the concept is used in the DMCA, cannot simply mean the ability of a service provider to remove or block access to materials posted on its website or stored in its system."

Granted, Amazon offers a different fact pattern but I think there is enough there to understand the scope of 'control' as required under the statute.

rrz103, Thank you for your well thought out reply. I only had time to quickly glean through it, but I wanted you to know that I thought you made some excellent points.

I would like to continue this discussion, but have to swing back later. Thanks again.

I simply followed your style: »Just stock talking.......How else should I take it when you apparently deliberately don't want to understand that it's not about *I*SPs but about *providers*, including hosting providers, regardless it happens to be ftp, http, videofiles or stamp collectors catalog.I'm very sorry but I'm getting tired of your obviously deliberate and constant mis-understanding, the fact that after so many well-documented fact you keep posting your 'isp'-blabla without having a single meaningful counter-argument WRT the definition of 'provider' - what's your interest here, may I ask?

He already said these points above - YT doesn't make money and cannot filter it.