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Cuban v. EFF lawyer on YouTube, DMCA
Posted by
Zonk
on Fri Mar 30, 2007 02:56 PM
from the strange-bedfellows dept.
from the strange-bedfellows dept.
hamtaro writes "Mark Cuban, owner of the Dallas Mavericks and outspoken activist on copyright issues, exchanged some words with an EFF lawyer at this year's EFF 'Pioneer Awards'. The awards, held earlier this week, saw a heated discussion ensue about YouTube. Apparently Cuban feels that 'everyone knows' that YouTube is host to tons of infringing content and therefore it should be exempt from DMCA protections. You read that right: the EFF, defending the DMCA against Mark Cuban. 'Cuban is an interesting spokesman for copyright concerns since he has a broad perspective; as the owner of HDNet, he worries about having his content given away for free without his consent, but he's also someone who has funded EFF campaigns in the past, especially when the group defended Grokster's claim to legality. One of the strangest aspects of the debate was seeing an EFF lawyer defend the DMCA, which usually comes in for a drubbing due to its anti-circumvention provision. But von Lohmann told Ars Technica after the debate that the safe harbor section has actually allowed plenty of businesses to flourish that might otherwise have been mired in legal problems, and that it has generally worked well.'"
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Who cares if they host some infringing content (Score:5, Insightful)
The whole point of the safe harbor provision is that service providers should get a warning and be allowed to remove infringing content that users post. If hosting infringing content posted by your users meant you were no longer protected the provision would be worthless!
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Don't throw me in that briar patch, br'er MAFIAA! (Score:5, Insightful)
What's really interesting is that if Google wins and sets a precedent, the floodgates are open for "YouTune.com". Anyone can upload any MP3 they like. Anyone can download any MP3 they like. Any MP3 that infringes on a copyright can be removed with a well-formed DMCA-compliant takedown request. It'll be like Napster, except that it'll have the speed of centralized server storage.
Once upon a time, web hosting cost a small fortune in setup and bandwidth charges, and having one's website nuked by a DMCAgram was a considerable financial disincentive...
Today, Google makes more millipennies off the banner ads on YouTube.com than the micropennies it costs to stream, repeatedly, the same 6-7-megabyte .flv Flash video file, to the same person, every time the user wants to watch it.
Imagine how many trillions of millipennies Google could make by letting millions of users upload their MP3 collections. Sure, each one might cost a few millipennies to remove when the DMCAgrams come in, but as long as the DMCAgrams cost a few dollars each for the MAFIAA (Music And Film Associations of America) to produce, Google will handily win the battle of attrition.
That's the short run. In the long run, MAFIAA will of course attempt to purchase new laws to protect its obsolete business model, but with their coffers drained from filing millions of DMCAgrams, and Google's coffers bursting with fresh ad revenue (from hosting content uploaded by YouTube and YouTune users during the day or two between its upload and DMCA-compliant removal), Google will finally have a fighting chance to purchase its own laws.
Sure, MAFIAA has an advantage in that your average Senator or Congressman (or even Slashdotter!) would rather snort a line of cocaine from between Titney's Pears than from Sergei's Brim, but ultimately it's all about the money. With the kind of money Google could offer them, a politician could simply buy Titney outright, and have enough left over for a whole fracking cocaine plantation.
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Re:Who cares if they host some infringing content (Score:5, Insightful)
Yes. It is perfectly legal for you to own a wood chipper. It is not legal for you to put people in your wood chipper. The manufactuer of the wood chipper is not responsible for the deaths of anyone you put in the wood chipper.
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Re:Who cares if they host some infringing content (Score:4, Interesting)
But in the cases where the ISPs won, they generally won on the argument that they provided a means for users to do things, but that they didn't police those means. The common analogy was that of a photocopier which was made available for the public to use without supervision; the courts didn't feel that it would be right to hold the owner responsible there, and thus, not to hold an ISP responsible in the ordinary case. Probably the leading case is Religious Technology Center v. Netcom.
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Re: (Score:3, Insightful)
And Ferrari builds cars that facilitate wreckless driving, and SpyderCo builds knives that facilitate stabbings, and Harmon Kardon builds speakers that facilitate listening to pirated MP3's. YouTube is a tool. Yes it can be used for something illegal, but so can most tools. It is the responsiblity of the user to obey the applicable laws.
Re:Who cares if they host some infringing content (Score:4, Insightful)
As long as YouTube meet the Safe Harbour rules they are protected by it. The fight will be on how the rules are interpreted.
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Re:Who cares if they host some infringing content (Score:5, Insightful)
No, it doesn't matter. The manufacturer of a xerox machine either does or does not get sued on the same basis as the owner of the machine, where in both cases neither the manufacturer or the owner are the ones engaging in direct infringement. Depending on the facts, it's entirely possible for one, or both, or neither, to be indirectly infringing. But merely providing a means for infringement does not guarantee that they are infringing.
Then he'd have to hypothesize a wood chipper that had a million feed hoppers hidden in the dark. Specifically setup so that there is no way to tell who is putting what into the machine.
Still irrelevant. There's no duty to be aware. There can be constructive knowledge, but that's not the same thing.
And the owner of the wood chipper somehow made money off of intestines and brains spraying from the outlet.
Still irrelevant, if the safe harbor holds.
Youtube built a system that facilitates copyright infringment. They cannot identify who uploads a particular clip. They do not prevent reuploading of the exact same file that has been legally removed.
Yes, but that's all legal.
They are nothing like an ISP.
Wrong. Here is the relevant definition of an ISP from the law:
Google provides YouTube, which is an online service. So as far as anyone cares, it is an ISP.
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Re:Who cares if they host some infringing content (Score:5, Insightful)
Actually, the users upload content, which is then transcoded to flash video and posted by YouTube.
Unless you own Google stock, it shouldn't be too hard to see how this is different from an ISP hosting a file on their FTP that was uploaded by a user.
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For those of you keeping count... (Score:3, Funny)
Seriously, I wonder if he wakes up each day and says to himself, "You know, a lot of people hate my guts, but gosh darnit I'm still only the second-most hated owner of a sports team in Texas. What to do, what to do..."
Re:For those of you keeping count... (Score:5, Insightful)
For those of you keeping count, that's reason 2.02x10^63 + 1 to dislike Cuban.
Anyone high-profile who expresses opinions is going to be hated by half the people. I respect the fact that he doesn't care what you think to muzzle himself, unlike most people. Also unlike most people, he can actually back up what he thinks with reasoning. One can certainly disagree with his conclusions, but at least it's thought out.
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Fixed that for you.
Cuban says what he says and does what he does because he has "fuck you" money. Otherwise he'd just be another guy ranting that no one gave a flip about.
It's difficult to pin Cuban down as to where he (Score:4, Insightful)
YouTube definitely has the benefit of the safe harbor provision of the DMCA and a well versed bunch of lawyers.
WRT to Cuban, well, everyone knows that cars are used to deliver drugs, both locally and across state and international borders... we should ban all cars! His argument is pretty weak for someone that seems to be as intelligent as he does.
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No, he is a character. There's a difference and IMHO, in his case, it's not a good thing.
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Must be Law 2.0 (Score:5, Funny)
Re:Must be Law 2.0 (Score:4, Insightful)
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The problem is not one of dealing with individual owners of a web site (as was envisioned at the time) but public forums where anonymous contributors can completely outstrip the ability of the infringed party to do anything about it.
F
Shortly there after... (Score:2)
Then Castro praised the value of capatalism for the room it left him to be communist.
Finally Bill Gates entered the room again to talk about how the new apple machine is the greatest leap in computing that has ever been made...oh wait, no that last one was 20 years go.
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Watch the man's stocks (Score:2)
However (Score:2)
Message to Cuban: Learn from history (Score:2)
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Now go down the hall and tell your boss that they should be giving away everything and you will work for free from now on. No?
Unfortunately, there isn't much of a middle ground between "free" and "not free" when it comes to money. If people insist that they want stuff for free, they better expect to be paid in kind as most jobs today rely on somebody paying for someting that is in digital
Dragnet time. (Score:2)
As the EFF gains power and finances from increasing numbers of donations, would it be wise to trade that lots of "street cred"? How did the political party behind The Pirate Bay fare on that one?
Re:Dragnet time. (Score:4, Informative)
Safe harbor is there for a reason. To say YouTube is exempt from safe harbor is unfair, short sighted, and preposterious.
Everybody knows that sidewalks are used to commit crimes, lets repeal the right against unwarrented search and seizure on sidewalks.
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Uhh, it's not like "DMCA GOOD" or "DMCA BAD"... (Score:4, Insightful)
Just like YouTube hosts some infringing content, and some non-infringing content. Take a look at the vloggers, independent directors, etc... It's stupid to try and cover an entire media distribution medium like YouTube like that.
Or the DMCA.
good DMCA vs bad DMCA (Score:2, Informative)
Bad is what everyone here probably thinks of - anti-circumvention rules, etc. Section 1201 and so on.
Good is a series of safe harbors for things like network caching, webhosting, and other situations where copying occurs but we don't there to be copyright infringement for policy reasons. section 512 and such.
Utter bullshit (Score:2)
Mark Cuban ... again? (Score:2)
Solution (Score:3, Insightful)
Really the system is much too complex today. We need more brick-based justice!
It's easy to be a critic until your ox is gored (Score:2)
Everybody Knows --lyrics by Mark Cuban (Score:2, Interesting)
Everybody rolls with their fingers crossed
Everybody knows that the DMCA is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
Thats how it goes
Everybody knows
Everybody knows that copyright is leaking
Everybody knows that hollywood lied
Everybody got this broken feeling
Like their father or their dog just died
Everybody talking to their pockets
Everybody wants a box of chocolates
And a long stem rose
Everybody knows
Every
Instead of giving away for free (Score:2)
Of cour
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Works for me.
It is called YOUtube, you know... (Score:2)
The impression I get from YouTube is that it is more about sharing home videos than infringing content. Everything about the site seems to indicate their intention was to encourage amateur filmmaking:
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Re:I like Mark. (Score:5, Insightful)
Everytime some slashdot user makes a libelous post someone should sue Slashdot in a libel suit. We also need better controls on e-mail because people could be sending copyrighted images to their friends. If e-mail providers can't get this under control they should be sued for allowing people to move that traffic on their network.
Lets not leave out ISP's, lots of them allow their pipes to be used by people stealing content!! Sue them too!!
Good idea!
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Why stop at suing them? (Score:2)
Why stop at suing them?
Make them share the posts/e-mail/network traffic with The House Un-American Activities Committee ^H^H^H^H The Department of HomeLand Security! There could be communist ^H^H^H^H terrorist posting - sending e-mail - using the networks...
bad analogy time! (Score:4, Interesting)
A user comes along, and uses my hand to slap you in the face anytime somebody says "Hello".
Somebody comes along, says "Hello", and through the user's directive I slap you.
You tell me to cut it out and I say "Ok.", and the next time somebody says "Hello"...
I slap you again. You tell me to fqn cut it out already, like you told me last time. I say "Ok." again. Somebody comes along again, says "Hello"...
And I slap you again. Now you're thinking "whatthefuck mate? STOP IT!". I say "Ok.".. again. Somebody says "Hello"...
And once more, I slap you. Now you might be thinking "what gives?" and instead of telling me to stop it, you check into why I slapped you. And you realize that the first time I slapped you because User A told me to do so whenever somebody said "Hello". The second time it was User B. The third time it was User C. The fourth time it was User A again. And then you realize - no matter how often you tell me to stop slapping you in the face, somebody else will just tell me to do do it all over again anyway.
Bad analogies aside, that's what the provision is allowing YouTube. Yes, you can ask them to remove a video (actually, it's not as simple as an e-mail saying "Hi, I'm Viacom - that's our material, please remove." It involves legal paperwork and all that stuff costing a small amount of money (well, small to Viacom)). But that same video (bit-for-bit) may be re-uploaded and YouTube can wash its hands in innocence pointing to the provision and saying they complied completely.
I.e. they comply with the letter of the law(directive/thing/whatever), but I think we all know it's not quite within the spirit of it. Any more than people complying with GPLv2 using the code to build server-side applications/etc. and ticking off a bunch of people are complying with the letter of the GPLv2, but not the spirit. Hence (and for other readsons) GPLv3. Same reason why the DMCA should be revisited as well - and while they do so, they can get rid of the utterly bad parts (stuff about not being allowed to break decryption/etc.).
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The flaw with your analogy (Score:2)
Not every video on YouTube is infringing.
For the nth time. Copyright law states that it is the copyright owner's responsibility to enforce copyright, and no one else's. That's because it's impossible to check every piece of content against every copyright owner, and this becomes exponentially more complicated when you factor in fair use/parody/etc.
For the nth time. Viacom shouldn't be suing YouTube for allo
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I'm the "service provider," and the service I am providing is space. Say it's a rooming house, for example.
I am providing space to you. In that space that I provide, you receive guests, and when they say "hello" to you, you slap them.
Now, what exactly does you slapping people have to do with me, other than the fact that you did it in a space that I provided to you?
To paraphrase a comment I read somewhere else in this thread, is it Slashdot's fault if I libel y
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However... once a copyright owner has identified a specific piece as violating their copyright, and pointed this out to YouTube,
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Whether or not the DMCA belongs to an old business model is irrelivant (1998 is outdated?) The media companies pushed for it, got it, and now have to deal with the simple fact that Sec 202, Title 512(c)(1) is US Law. That gives YouTube safe harbour provisions.
If the media companies want to change the DMCA, they should take it up with their friends in Congress,
If the DMCA does ever get revisited... (Score:2)
Basically if we are going to claim that IP is so valuable, and give someon
No, they can't always be popular or 'moderate' (Score:5, Informative)
To be what the EFF is, they have to take positions on issues that might not seem moderate or be popular.
First- they have to start working on issues long before most people even know that a technology exists- things that are obscure, not popular, so less likely to bring in vast numbers of new members.
Second- they'll work on the civil liberties implications of what might seem like fine technology- this certainly can make them unpopular.
Third- they sue corporations, which obviously isn't going to help with corporate donations. (which is why the EFF needs memberships, they're a small, non-profit, member-based organization [eff.org], even though all their cases might make them seem much larger [eff.org]. Grants like the one that got them into the secret EU TV DRM meetings [eff.org] are the exception.)
Fourth- the defendants they get aren't necessarily going to be angelic posterboys. Governments or corporations (think RIAA) will always try to set precedents with the ugliest and least sympathetic cases first. i.e.The RIAA didn't start with grandmas and orphans, they started with rowdy-seeming college students.
If you look at the ten major areas where they work:
How likely is it that a techie (or anyone) will agree with 100% of all 10 areas? (Pretty unlikely, because I don't think you'd get 100% agreement even by the EFF's people themselves.) As one example, Hamidi v Intel [eff.org] can't be called a crowd pleaser here. And that the EFF focuses on the collateral damage to free speech caused by some anti-spam technologies isn't popular- it's probably their Skokie march- but it follows from their core work.
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