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."'"
Re:Common Carrier Defense ... (Score:5, Insightful)
Where I think they get into trouble is that, in order to claim Safe Harbor, they basically need to be able to claim "hey, somebody put that up onto our system, we didn't know it was infringing, we didn't even know it was there!" And it's a bit tough to do that with Usenet, seeing as how it's about 99% binaries and anyone who's ever opened up the alt.binaries.* hierarchy can tell that it's got a lot of bootlegs and warez in it.
It would be a little comical to see a whole bunch of seasoned network engineers and other greybeards try to claim that they had no idea there was copyrighted material on Usenet. ("Warez? On my Usenet?") But that's sort of the position they have to put themselves in, in order to get a successful 512(c) defense.
They also have to show that in the past they've complied with DMCA takedown orders against content that a copyright holder has pointed out as being infringing, which it seems like they weren't doing. That may also be a problem, although maybe they can argue that they didn't have the capability to delete articles (after all, if they took them out of their store, would they just have come in on a feed from another site that they peer with?). It might be difficult to get a judge to swallow that, though.
I think they're in trouble, but I'm not sure exactly how much trouble just yet.
Kinda Sad (Score:2, Insightful)
What is, to us, a distributed and self-replicating system of nodes to distribute information (in the form of text "articles") worldwide is, to a judge, a website that sells access to copyrighted materials and refuses to remove them.
It's the same sort of roadblock torrent sites run into: computer illiteracy. Though, to be fair, it's not like judges should be required by law to be well versed in the ways of technology (though a little bit of knowledge would help), steps should be made to ensure that trials/hearings/negotiations/etc are presided over by someone who understands or can be made to understand all of the nuances in the discussion.
Re:Common Carrier Defense ... (Score:5, Insightful)
Why is that a barrier to a successful 512(c) defense? If the host, Usenet.com in this case, services all take down notices in a reasonable and timely fashion and makes reasonable efforts to accommodate copyright holders (the court decides what is and is not reasonable) then have they not fulfilled their obligation under the law? How would they know if there was a copy of Eric Clapton's greatest hits on their network? Sure they could search for it if they wanted to but are they required to have automated agents searching all of the time for everything that might be copyrighted? Is that reasonable or even feasible? Certainly not, it is the responsibility of the copyright holder to locate infringement and take the legally required step of sending a take down notice. As long as there is a reasonable system in place to service requests from copyright holders, then the content host has fulfilled its obligations and should be able to take refuge in the safe harbor.
Re:USENET? (Score:2, Insightful)
All MP3's Are Infringing (Score:3, Insightful)
The attitude of the RIAA appears to be that any and all MP3 files are by their very nature illegal, and that they deserve huge woges of money for anyone who has ever touched one. This, of course, is not true at all -- except in the mind of the RIAA.
If anyone at all is going to kill the rich culture of this country, it won't be the filesharers. It will be the RIAA, and copyrights extended to infinity -- and beyond!
They might (Score:1, Insightful)
They might, but for downloaders, it might not do that much good.
Remember that the RIAA won their last case because the woman "made available" certain songs on P2P. But if you download, you aren't making something available, and thus less likely to raise the ire of a retarded jury in kansas.
Plus, if a nntp provider is smart, they won't keep logs beyond the amount a user has downloaded.
I thought most if not all of Usenet is encoded. (Score:3, Insightful)
Maybe i'm missing a point or two here. But it seems to me in order for anyone including the RIAA to define the content of Usenet they would have to decode the binary "and probably have to have a special reader for text" messages. UUencode YENC and MIME seem to be the major encoding types and seeing as the servers store purely code in an unidentifiable format there is no way they could actually SEE what is posted without downloading it and re-encoding it back to a compiled file. Movies/audio etc are all converted TO ascii and then back.
You cannot watch a stream coming into a usenet server and say it's an MP3 or MPEG or AVI If memory serves me. It's possible the subject line would be clear/plain text but more than that is encoding.
Correct me if I am wrong.. I've been using Usenet since 97 but it's been since like 98 since I investigated what made it work.
Re:RIAA's biggest mistake.. (Score:3, Insightful)
Seriously...
--
The RIAA's biggest mistake is picking up the role of angry bull elephant. When an angry bull elephant starts attacking the village with intent to cause as much harm as possible, the villagers are quick to;
1 Run and hide.
2 Put up defenses.
3 Directly attack the threat.
In short.. Number 1 is trade offline with the sneaker net. USB drives, USB music players, CD and DVD burners are now the choice for moving massive amounts of data without risk. Number 2 is the online resource to pool knowledge such as the Ray Beckman site and those who are fighting instead of rolling over and paying the settlement supprt center. and 3.. Counter suits, RICO suits, Anti-Trust suits, Class Action Suits, and artists openly slamming them such as the recent tour where the artist told the crowd to steal the music. Artists are going independent. The RIAA is badly wounded, angry, dangerous, and is being dealt with in response. The PR is in the trash. They need to change or die. Even the congress is looking at changing copyright law.