Usenet.com May Find Safe Harbor From RIAA lawsuit 126
Daneal writes "Ars Technica has some interesting analysis of the RIAA's lawsuit against Usenet.com. There's reason to believe that Usenet.com — and most other Usenet providers — could qualify for protection under the DMCA's Safe Harbor provision. 'The DMCA's Safe Harbor provision provides protection for ISPs from copyright infringement lawsuits as long as they take down offending material once they are served with a notice of infringement. "Whether the Safe Harbor applies is the central legal question that is going to be raised," EFF senior staff attorney Fred von Lohmann told Ars. An RIAA spokesperson tells Ars that the group has issued "many" takedown notices to Usenet.com, but von Lohmann says that the volume of takedown notices isn't what counts. "The DMCA's Safe Harbor makes it very clear," von Lohmann said. "The number of notices doesn't matter as long as you take the infringing content down."'"
Seem to remember... (Score:5, Informative)
Re:Seem to remember... (Score:5, Informative)
Re:Seem to remember... (Score:5, Informative)
"To date, Usenet.com has refused to remove content or discontinue offering certain newsgroups."
The rub. (Score:5, Informative)
To be honest, I don't know how Usenet.com can not qualify for DMCA protection, since it's exactly the type of service that the Safe Harbor exception is supposed to protect. The only thing that seems like it could harm Usenet.com is their advertising, which does veer a little into "wink, wink, nudge, nudge" territory. However, damning a company because it says it respects users' privacy, without actually advocating any type of criminal activity, seems like pretty terrible precedent, and I can only hope (although at this point I have little faith) that a judge will see it similarly.
I think the mention in the Ars article about Safe Harbor being related to "transitory network communications" is irrelevant here. Transitory network communications is covered under 512(a) of the OCILLA (which is part of the DMCA); the portion that I would expect Usenet.com to seek protection under is 512(c), "Information Residing on Systems or Networks at Direction of Users".
You can read the relevant section here [cornell.edu], but the significant portion, IMO, is:
The major things they're going to have to avoid are that they "had actual knowledge" that the material was infringing (which might be tough -- I mean, anybody who opens up alt.binaries.movies can probably tell pretty quickly that it's full of bootlegs) and that they didn't receive a "financial benefit directly attributable" to the infringing activity. I think that second one is actually a little easier (for Usenet.com) than the former. And, of course, they have to successfully argue/explain that they don't really have the power to remove articles from Usenet, because of the nature of the network -- it would probably help their case if they started at least deleting articles from their spool/store when they receive a complaint.
I suspect that this may lead to a shakedown in the Usenet provider world, if Usenet.com loses. At the very least, the big providers might have to do more in order to maintain a veneer of plausible deniability (deleting some of the more obviously movie and/or warez related groups, perhaps), or move their servers out of the U.S.
Re:Seem to remember... (Score:3, Informative)
"If Usenet.com can show that it complies with the DMCA by removing access to infringing content and by suspending the accounts of repeat offenders, it may be enough to provide it with protection under the hosting and linking provisions of the DMCA."
Re:Common Carrier Defense ... (Score:5, Informative)
The issue is that Usenet.com blatantly (from a common-sense point of view, whether it's legally meaningful I have no idea) markets themselves as a way to illegally obtain copyrighted content. As someone put it yesterday, if the phone companies ran commercials advertising "Telephones -- the best way to plan your terrorist activities!" that would cut into their ability to claim common carrier status as a defense. Same thing for Safe Harbor.
Incidentally, didn't we have a story a few months ago complaining that the MPAA and RIAA weren't suing usenet providers, and how that proved some conspiracy theory? If that faction is relieved at this new development, I haven't seen them mention it.
Re:The rub. (Score:1, Informative)
Wow. Suicide by advertisement. (Score:5, Informative)
http://www.usenet.com/articles/free_download.htm [usenet.com]
To wit: (in case they take the page down, which I sure would if I were them)The hell with it: They're pretty fucked.
Federal funds did * not * build the phone network (Score:5, Informative)
The first US telephone exchange opened in 1978. AT&T and the regional Bell companies were privately financed from day one and evolved into regulated public utilities.
The common carrier rule can be traced back to the days when Western Union was in its prime and censoring telegrams it found inconvenient.
With the the exception of civil engineering projects like the Panama Canal, federal spending on infrastructure begins with the New Deal of the 1930s.
Binary Retention Periods (Score:2, Informative)
Re:USENET? (Score:3, Informative)
Bummer. But it was bound to happen. The binaries hosts have gotten a bit too blatant with their marketing and have made USENET binary downloads a far easier endeavor than it used to be. The critical mass of users which triggers copyright lawsuits has been reached.
If usenet.com goes down, the rest will swiftly follow.
Re:Take Down Notices? (Score:5, Informative)
Of course, that assumes the party issuing the takedown notice knew to cite the offending articles by Message-ID. The canceled messages will not re-propagate to the server. The poster, anywhere else in the world, could still repost under a new Message-ID (automatically generated for every posting). The cancel messages can even contain the takedown notice in each message body, which would be readable in the newsgroup named "control" and/or in "control.cancel" if it is present.
They wouldn't necessarily even have to cryptographically sign the cancels since they are local, though it might be wise to prevent fellow users of the same server wildly canceling other articles.
These organizations could technically send out their own cancel messages with unrestricted distribution, though I'm not familiar with the current state of the art in preventing forged cancels. If spammers have truly lost interest in Usenet, it may have come to the point where cancel messages are generally ignored.
Re:Seem to remember... (Score:3, Informative)
The Wired article [wired.com] has a link to the actual lawsuit in PDF format. It actually makes an interesting read.
Re:Seem to remember... (Score:3, Informative)
As a former INN server admin from 1994 to about 2001, that's bunk I'm sorry to say. I resisted modding you down (even have the points for it!) just to clear the air here. If you stream news to someone else, your removal of an article affects your downstream servers as well. It's quite easy to remove an article - always has been.