Viacom Says "YouTube Depends On Us" 163
Anonycat writes "Michael Fricklas, a lawyer for Viacom, has an opinion piece in the Washington Post laying out Viacom's side in their $1 billion lawsuit against YouTube. Fricklas asserts that the DMCA's 'safe harbor' provisions don't apply because YouTube is knowledgeable to infringement and furthermore derives financial benefit from it. He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them. Fricklas caps the argument by stating, 'Google and YouTube wouldn't be here if not for investment in software and technologies spurred by patent and copyright laws.'"
There's the real danger of Grokster (Score:5, Interesting)
Double dipping with the same argument should just get a case thrown out on the same day it's filed.
Re:There's the real danger of Grokster (Score:4, Insightful)
Re:There's the real danger of Grokster (Score:5, Informative)
"Grokster, if you recall, was explicit about saying that the company was guilty of contributory infringement only because they *encouraged unauthorized copying. The argument that "they benefited" from this copying was insufficient to that holding. Now here's the argument again..."
I think you misinterpreted the decision. The ruling said that the plaintiffs didn't need to show that the defendants benefited from unauthorized copying by 3rd parties because the defendant's software's primary purpose was to encourage that unauthorized copying. The latter was sufficient to show liability for 3rd-party copyright infringement.
That being said, it's quite a stretch to apply that reasoning to YouTube. In fact, that ruling works in YouTube's favor as YouTube is marketed for the purpose of sharing user-created content. That it is being used (even substantially) for 3rd party copyright infringement is not solely the issue to determine if YouTube is liable for its user's actions. In the Sony case, the Justices noted that VCRs were largely used for 3rd party copyright infringement, but were still protected because they had substantial non-infringing uses. Since YouTube is complying with the DMCA by providing a means for copyright holders to mark their content for removal (and the DMCA requires copyright holders to shoulder the responsibility for finding and marking infringing materials), and assuming that YouTube removes the infringing content upon notification, then I think YouTube will readily prevail.
In the Grokster decision, Justice Breyer noted that the Court cannot possibly decide whether a technology has future non-infringing uses when even professionals in the field cannot agree. As such, it strongly implies that if a reasonable argument can be made for probable substantial non-infringing uses, then it's better to err on the side of the new technology than to decide against it and stifle future commerce.
Grokster is little more than a footnote regarding YouTube, and seems to have very little applicability to it.
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I think that you need to read it again:
"Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or o
Still valuable without Viacom content (Score:5, Insightful)
Re:Still valuable without Viacom content (Score:5, Insightful)
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But the problem with your broader argument is that the most popular youTube clips are predominantly not-legally posted. Just stroll through the most-viewed clips [youtube.com] every now and again and tally up home-made vs capped videos.
Sure, Viacom is the free-preview of video broadcasters following the RIAA's road to nowhere - but in the interim youTube really is deriving quite a bit of its value from not-legally-posted videos.
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top 20 at 9:40 central time (Score:2)
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You're half right (Score:2)
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Missleading and easily rigged. (Score:3, Insightful)
Just stroll through the most-viewed clips every now and again and tally up home-made vs capped videos.
That's missleading. You need to know what percentage of the traffic the top ten make up as a whole before you can say that Google is living off other broadcasts. The best indicator of this is netflicks, which goes through the entire catalog of film much more than you would expect. The "blockbuster world" is an artifact of previously inferior distribution that was unable to keep up with people's broad
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Viacom bought ifilm, and other studios are working on their own version
http://www.theregister.co.uk/2007/03/22/nbc_newsc
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http://slashdot.org/article.pl?sid=07/03/20/15822
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Al gore still... (Score:3, Funny)
Anonymous Cow.
Re:Al gore still... (Score:4, Informative)
Al Gore and the Internet
By Robert Kahn and Vinton Cerf
Al Gore was the first political leader to recognize the importance of the Internet and to promote and support its development.
No one person or even small group of persons exclusively invented the Internet. It is the result of many years of ongoing collaboration among people in government and the university community. But as the two people who designed the basic architecture and the core protocols that make the Internet work, we would like to acknowledge VP Gores contributions as a Congressman, Senator and as Vice President. No other elected official, to our knowledge, has made a greater contribution over a longer period of time.
they know.... (Score:5, Insightful)
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There is (probably) no DMCA protection if you make a profit - I say probably because that clause is particularly badly-worded. The point of that get out I think was if an ISP let server space to somebody who infringed copyright then provided that the ISP didn't make any money out of the fact of the infringement then they were in the clear (but they could make money in the normal course of business by renting the server space).
What Yo
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Re:they know.... (Score:5, Insightful)
In the end, I think YouTube is no different then a web hosting company offering free space, so long as you put up with their ads. They do not directly control what is uploaded and therefore cannot be liable for its uploading. The fact that they make money should have absolutely nothing to do with it, since the DMCA does not say, "if you make money, this clause does not apply." I believe any ruling against YouTube that went against the safe harbor clause would go all the way to the Supreme Court, which might actually agree with what Congress apparently intended with this horrible law.
If any argument saying they make money off of infringement, and are therefore liable, is successful, it would destroy the safe harbor clause.
I'm not convinced of their argument that they are genuinely ignorant either - enough stuff seems to get pulled at quickly for decency reasons makes this seem weak.
I am pretty sure YouTube works on a reporting system for decency issues. As such, if someone tags an item it gets reviewed and pulled. I do not think many people are going around YouTube tagging infringing content, their reasons could be various. The DMCA puts the responsibility on the copyright holders to provide takedown notices. Viacom is not on good ground with the law in this case.
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That's not part of the DMCA, but that is a factor in determining whether use of copyrighted material is a vicarious or contributory infringement.
Rather than being part of the safe harbor clause, money is part of the definition of whether something is infringement or not. The financial benefit is important on a different level of the issue and is still relev
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There are several people replying to my comment with words to the effect of "That can't possibly be true because if it was the effects would be devastating." Sorry - that is not how the law works. It looks, from the badly worded clause, that YouTube are liable.
Here is the clause
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There are several people replying to my comment with words to the effect of "That can't possibly be true because if it was the effects would be devastating." Sorry - that is not how the law works. ...
To fall within this safe harbor YouTube would have to claim that they fall within clause A(ii) - if they are genuinely not aware of facts or circumstances from which infringing activity is apparent, then they are the only ones on the planet. Perhaps firing up their own search engine and looking for "The Daily Show" may be a clue.
Sorry, but that's not how the law works. YouTube is making the case that they simply obey the law. Every time someone tells them that something violates their copyright, they take it down "expeditiously." That's what the law requires. They don't have to be unaware of the fact that copyright violations occur, only of a specific infringement. What Viacom is claiming is that YouTube relies on the window between the upload and the takedown for their profits and continued viability. Not just that, but Viacom is
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Well, I've finally got round to RTFA and, unsurprisingly, my argument is the same as Viacom's. The added bit, which I think makes it a slam-dunk, is this
YouTube has even offered to find infringing content for copyright owners -- but only if they do a licensing deal first.
If this is the case they are clearly in breach
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YouTube has even offered to find infringing content for copyright owners -- but only if they do a licensing deal first.
If this is the case they are clearly in breach of clause B. They gain financial benefit from the service and they have the ability to control the infringment (not that it does not say eliminate - just control).
I'm not seeing it.
How would this change the situation? Of course, they have the ability to control the infringement on a case-by-case basis. No one has argued that. What Viacom seems to think is that they could somehow control infringement on a global basis. There's simply no practical way, and so YouTube must rely on copyright holders to identify infringement of their works in order to act in their interests. They do this. That's no more true for YouTube than it is for a message board provider (who all, b
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They make money from their service - definitely true. This does not equate to make a profit.
They can control the infringement - definitely true. They offer this as part of a licencing deal so it is not just on a case to case basis - it is on a company-wide basis.
This means that they do not comply with clause B, and they cannot be a safe harbor under the DMCA.
The only wriggle room I can see is if they say "They cannot control the infringement as they have to work with a third party to do so
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Re:they know.... (Score:4, Insightful)
This makes them liable. I'm not convinced of their argument that they are genuinely ignorant either - enough stuff seems to get pulled at quickly for decency reasons makes this seem weak. But that probably doesn't matter.
Probably due to the community clicking the "flag as appropriate button" and selecting the appropriate item from the drop down.
Note that any member of the site can mark any video as offensive; however, there is no way they provide for you to report a video as a copyright infringement, unless you are the copyright owner. There is a separate procedure for that. I believe the flag/'mark as offensive' feature means that Youtube is able to remove offensive content without personally reviewing every video -- in fact, potentially: the site can programmatically remove content, possibly automatically close the uploader's account and wiping out their other videos, without any administrative intervention whatsoever, if enough of the Youtube users clicked "flag as offensive".
For one thing, only the copyright owner can really be sure the content is infringing -- for all Youtube knows, you have made a private deal with the copyright owner allowing you to display the content.
Almost EVERYTHING with any artistic merit that is uploaded to Youtube is automatically copyrighted, without question, the question of whether something is infringing or not is more complicated than "Does your video contain copyrighted material?".
There is a possibility that a video includes copyrighted material, AND the copyright owner DISAPPROVES of its use, and it can still be allowed fair use within copyright law.
Youtube has no way of knowing whether a court would find your video to be infringing or whether it would be protected fair use (free speech).
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If Viacom would ... (Score:5, Insightful)
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Oh, that was uncalled for
Signed, the copyright holder of over 1500 Slashdot comments.
Re:If Viacom would ... (Score:5, Insightful)
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Are you referring to this Mouse [google.com], or this Mouse [google.com]?
I think that the current issues of copyright are nicely bracketed by the two: the advent of the Internet making copyrighted content easier to sell, spread, and steal; and the hard-nosed tactics of Disney to keep their stuff copyrighted indefinitely.
It's international (Score:2)
lobby Congress to alter copyright law in the USA to change the duration to something more reasonable
Part of the problem is that the developed nations are in a race to the bottom. Nobody can fix their own laws without running afoul of TRIPS [wto.org] in particular. It looks like the only way to truly reform the IP regime is to do it at the international level.
Simple solution (Score:3, Insightful)
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How do you know if a clip is legal to share or not? It could fall under fair use, it could be released to the public domain, it could be completely user created, etc. In some cases, it's obvious, but in most, it's not.
The only one that knows for sure is the content owner, which is why YouTube says that the content owner has to inform them about any clips that gets uploaded without permission, in order to be able to remove them. No one else can.
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My god, what a "think of the children" argument. The first normal guy to see it would flag it, it'd be promptly taken down and the logs handed over to the FBI. Perhaps there should be a mandatory review for free webhosts (and on each update) too? Myspace? Blogs? Photo album sharing sites? Yahoo groups? Taking content down is the common approach, not preapproving it. Copy
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0
_____ ---you
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apologies for crap ascii art
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Simpler solution (Score:2)
2. Sue them.
3. Win (by using their own "Viacom depends on us")
4. Shut them down.
Simple.
(Chance of happening - slim to none)
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The new provisions in the Law are that the copyright OWNERS must self police the intarweb. AND THEN inform the service providing the copyright materiel that copyright infringement is taking place. THEN it is the responsibility of a service like YouTube to self-police. Not before.
Wah, wah, wah. Call me flamebait but the copyright holders dug themselves this grave (who *really* sponsored the DMCA and tried to kill Fair Use?) and I hope they are buried in it, personally.
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The DMCA disagrees.
Is it reasonable to say just tell us what is your's when you removed the items without their permission.
The DMCA requires exactly this procedure. Is following the law reasonable?
They need to start an approval process like most other sites.
No, they don't. The DMCA provides a safe harbor for them and the others.
I'm talking kiddie porn and such.
No one else is. Stay on topic. The recorded music vending industry got the law they wanted, now
Pfft (Score:4, Funny)
In other news : Viacom invented internet (Score:2, Funny)
We could use this... (Score:2, Insightful)
I don't watch any "big producer" content on YT (Score:5, Interesting)
Strangely, it appears YouTube will continue to be supported by me because of the non-infringing material. Actually, in my opinion, all the Viacom, et. al. material makes it difficult to find the real gems.
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Their website is an ugly, flash-infested, huge, slow, horrible, mouse-only trainwreck. It makes me feel dirty to use it. The Pokemon website is less embarrassing.
You can only watch segments. I want to kick back for 15 minutes and watch the whole show without mousing around every 2 minutes!
It doesn't let you download for mobile devices.
It doesn't allow fullscreen.
Re:I don't watch any "big producer" content on TV (Score:3, Insightful)
YouTube depends on Viacom?? more like "YouTube a threat to Viacom"
ALL of the big media companies are scared of the Internet because it is breaking the monopoly they have on the flow of information and eroding their customer base of both viewers and advertisers. This has less to do with content than it does with undermining the emerging competitor at all costs.
Undue Burden? (Score:5, Interesting)
From the summary:
Oh please. You want an easy solution. Setup a website where users can create an account, provide contact information and then search the web and/or P2P networks to report instances of copyright violation. When a particular instance has been reported a certain number of times have a real person check the link to determine if a violation has occurred and then take appropriate action. Reward the volunteers who are reporting the violation with points for those instances where a verified violation has occurred and after a certain number of points are accrued reward users with a free DVD or CD from the catalog.
The amount of money that the RIAA and MPAA would save if they implemented this kind of system would more than offset the free DVD's or CD's they would be giving away if their own figures on losses due to piracy are real.
With the Internet, you've got a whole army of users who can be the watchdogs for you. All you've got to do is give them an incentive and have a verification system in place to weed out fake entries.
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Very undue. (Score:4, Insightful)
Now they want to take this a step further and have the ISPs police their own network, without any interference from the RIAA. In short, they want to sit back and have you throw your money at them.
The arrogance in claiming that Google wouldn't exist without Viacoms patents is beyond me.
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He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them.
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Oh please. You want an easy solution. Setup a website where users can create an account, provide contact information and then search the web and/or P2P networks to report instances of copyright violation.
The irony is, this would be easy to do if copyright was still "opt-in", as it was for the first two hundred years. As it stands now, there's no easy way to determine what is or isn't copyrighted. This was due to the content industry, which wanted to save themselves a few bucks on the "burden" of establish
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He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them
Oh please. You want an easy solution.
They want more than an easy solution, they want to shift the burden from where it has been rightfully placed: with the content creator. It has always been required for a creator to be vigilant in protecting their copyright; it is a valid defense to show that the creator isn't protecting it. Now that the job has gotten difficult they want to somehow centralize it, write a search engine and magically remove only the infringing content and sue only the infringing parties. Sorry, but they need to write the sea
Depends on what "aware" means. (Score:2)
Clearly, it means being aware of a specific instance of infringement. Otherwise the law could and should have been written to put the entire burden of copyright enforcement upon the service provider, since that that is the effect of the other interpretation. Any company providing a service on which copyright infringement was possible must surely be aware that it is almost certain to
Viacom Says "YouTube Depends On Us" (Score:2)
From our point of view, there's only one way to prove YouTube is dependent on Viacom or not: Viacom, either do whatever you'll do, or shut the hell up.
Stephen Colbert: Star Defense witness. (Score:5, Informative)
following through (Score:2)
Good on you, Viacom! (Score:2)
Umm.. (Score:2)
On the 30 second segment or an entire 30 minute show? Cause you're only infringing if the clip is of extended length.
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And while posting the last 30 seconds of Citizen Kane might be obnoxious, it certainly wouldn't necessarily be a copyright violation. Besides, by now doesn't everyone know that "Rosebud" was Kane's;lAS ){A*R7}}}}}}}}}d}}d}}d
NO CARRIER
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There I saved you 2 boobless hours.
Can Google "Manage" Content? (Score:2)
If Google made it a policy to track all copyrighted material, they are expressing an editorial decision of what ca
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I'm seriously asking.
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It would be different if Google held each post on YouTube and vetted it before posting it. Then Google would make itself responsible for any copyright violation or any other violation (such as privacy or libel violations) because it is actively examining each post.
There is a court president that says that bulle
Wow! Who knew? (Score:2)
http://www.youtube.com/watch?v=-Sa30lbrisw [youtube.com]
http://www.youtube.com/watch?v=SlTvSUCCqPo [youtube.com]
http://www.youtube.com/watch?v=x30mBix9v0s [youtube.com]
Can they sue Viacom for SAG royalties?
IANAL but... (Score:2)
Viacom already lost anyways (Score:2)
Stretching the DMCA to suit his whims (Score:3, Insightful)
Google may know that, in principle, some of the videos that people have posted are in violation of copyright law. But they don't know which ones, or who the copyright holder is, until they get a DMCA takedown request. This was an intentional feature of the DMCA, to protect service providers from the actions of their users. The sheer fact that this protection is necessary is a clue to any service provider that some of their users will, in principle, post content that violates copyright law.
And yes, Google gets revenues from advertising. But the DMCA requires that the financial benefit that a service provider gains be a direct benefit from the infringement. Numerous free web hosts (Angelfire, Geocities, etc.) have been foisting ads on the people who view their users' web pages for years, and some of the content on those web pages infringes on copyright. This puts those web hosts in exactly the same position as Google, yet those web hosts have never been sued, because the financial benefit those advertisements provide is indirect to the infringing content posted by their users.
The only thing left that the DMCA requires is that a service provider take down infringing content upon receiving a takedown notice, and Google complies with those notices in a timely fashion. Whether Viacom likes it or not, Google qualifies for the safe harbor provision, and this lawyer guy is full of... hot air.
we can test this... go to youtube (Score:3, Interesting)
click on All Time under Time.
click on Top Rated on Most Viewed.
Lets all look for Viacom clips shall we.
Hmm, there are a few that *might* be infringing - I'm going on Video names here alone.
Hardly depends on viacom here.
The overwhelming majority of stuff looks like the standard youtube crap.
AHHHH!! I understand Viacom's problem - they cant distinguish their crap from the rest of the crap.
I propose an experiment (Score:4, Funny)
Take It to Congress (Score:3, Insightful)
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Copyright law puts the burden on the providers (Score:2)
Sorry, but while IANAL in so far as I am aware, Copyright Law requires that the content owners/providers/etc have the burden of spotting and proving infringement. That onus is on them exactly for the same reason that it is the trademark owners and patent owners burden to do the same in order to maintain it. That's how the law works, like it or not. If that is too big a burden for you
WTF did he say? (Score:2, Insightful)
Only in America could a Corporation have the audacity to suggest...no, not suggest, *say* that technology has been spurred by patent and copyright laws. Perhaps it was, originally, until they got a hold of the fact that it could be used, along with corporate-leaning litigation laws, to stifle competition.
Following this, I'm assuming that Viacom is going to announce that a lack of national health care h
I use YouTube and other such video sites for ... (Score:2)
I use YouTube and other such video sites for computer seminars, lectures, symposium videos. Google videos is better for that since they don't have the 10 min time limit and don't have to hunt down part x of 8 and such. If you're defending your dissertation or giving a talk on something cool, please record it and post it on Google videos or youtube.
Also, for live performance of artists (not big name label artists but indies and such) but small artists and just musicians playing their instruments.
I think
Uhm... Viacom supports user infringement! (Score:2)
If you go to Comedy Central (one of Viacom's properties) every Colbert clip etc. has a link where they state "Copy and past this link
Someone needs to show this to the judge...
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Notice that they allow you to embed flash videos - that may contain ads and very well could contain counters to determine what's popular and what's not. In short, they could have very good reasons for giving away all the content and still not letting others use it.
Fricklas is an idiot (Score:2)
More important, however, is that is absolutely the case that the copyright holder, not any other party, is responsible for identifying potentially infringing content. Why? Because the simple fact that the content is copied/
How is this legal? (Score:2)
Will this dispute between Viacom and YouTube be tried before a jury? If so, how can this be legal? Surely this article could be construed as potentially prejudicing any jury against YouTube
Just another losing whiner (Score:3, Informative)
I sent the following comment in to the Washington, Post:
Mr. Fricklas' comnents are, for lack of a better term, a whiner who doesn't like the law as written and wants to sue to get something from the courts that the legislature has clearly denied him. His point that You Tube has knowledge of copyrighted content is not relevant. As his own statement has made, Congress gave sites immunity under the Digital Millenium Copyright Act for sites that quickly take down infringing material. He has not said that Youtube is not removing material when requested; indeed, my understanding is Youtube removes tens or hundreds of thousands of reported clips all of the time. Here, also, he is in effect saying that because Youtube has the capacity to remove material either because it is unlawful or in some way undesirable, Youtube is infringing because of the very controls it is required by law to have to remove infringing material! If Youtube didn't have controls to remove the material, I'm sure that then he'd be claiming that it was not properly designed to comply with the law!
He also writes, "Is it fair to burden YouTube with finding content on its site that infringes others' copyright? Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That's hardly a workable or equitable solution."
The only problem with his argument is that that has been the exact requirement for the past 200 or so years that copyright has existed; the copyright owner is required - and has always been required - to police his copyrights - and no amount of whining about how a requirement - in existence for hundreds of years - to be changed because he doesn't like it is valid. I'd like to remind this lawyer of a comment by the U.S Supreme court regarding how one obtains one's rights over something:
My guess is that this whole lawsuit is nothing more than a bargaining chip so that Viacom can make more money off their content. Since, like so many other whiney losers, he can't figure a way to negotiate in the marketplace, he goes running to the courts to try and get what he can't win at the bargaining table.
Paul RobinsonGeneral Manager
Viridian Development Corporation
Arlington, Virginia
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His comments are a whiner? Nice.. a character assassination with poor grammar. That's credible, and completely unlike anything before seen on the internet.
As his own statement has made
Congress gave sites immunity...for sites
because Youtube has the capacity to remove material either because it is unlawful or in some way undesirable, Youtube is infringing because of the very controls it is required by law to have to remove infringi
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What this suit really means (Score:4, Funny)
After I wrote a prior piece here, I realized a great (bad pun) quote that sums up Viacom's lawsuit.
Viacom's lawyer, in effect is saying, "All YouTube are belong to us!" [wikipedia.org]
Undue burden? (Score:2)
That was the intent of the founders of copyright law. In exchange for copyright protection, copyright holders must use their own resources to find infringers. It is the same for patent and trademark holders. They cannot use taxpayer funded resources to find infringers, that would violate the spirit of the law.
Undue burden? DEAL WITH IT, IT'S THE LAW.
Google and patents (Score:2)
being intentionally stupid (Score:2)
That's like saying we should do away with the cops and make the criminals legally required to turn themselves in, to reduce the "undue burdon" on the legal system. Is there anyone in the world that is actually saying "gee why didn't they think of that earlier?"
How do you respond to such a
Then buy another law... (Score:2)
Hey, you're the ones who bought the DMCA. If you feel you're not getting your money's worth, then go make some more well placed contributions and I'm sure you can put the onus on the webhost rather than you.
Don't whine when your law doesn't work anymore because of changing technology.
As an aside, the fact that your content is so easily reproducible might be a sign that our copyright l
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Not so sure computers would have progressed so rapidly without hardware patents though. Perhaps they would, but there has been a lot of microchip development from smaller players who would have been elininated by the big companies if they hadn't had any patents.