Cuban v. EFF lawyer on YouTube, DMCA

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.'"

Who cares if they host some infringing content

[mjmalone]

That's absolutely ridiculous. YouTube has certainly complied with the guidelines prescribed to qualify for safe harbor (which protects service providers from copyright liability if they follow certain rules). They've even taken down content at the request of content-owners. Wether or not people "know that YouTube hosts infringing material," it doesn't matter. YouTube users post infringing content, YouTube the organization does not. And everyone also knows that there is a plethora of original, non-infringing material on YouTube as well.

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!

It's difficult to pin Cuban down as to where he

[zappepcs]

stands on various arguments, but overall, I like him. I don't think that he is the best example of how to be a businessman, but he does have character. I think that he is just savvy enough to pull the truth out into the light for people to look at it while he is making money off of it somewhere else.

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.

Re:I like Mark.

[GiovanniZero]

You're probably right, service providers should be held accountable for what their users post.

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!

Somebody needs to explain legal procedure to Mark.

[Chas]

"Everybody knows" isn't a valid legal argument.

It's a shame Mark has to make such an ass of himself simply to take a swipe at Google.

Re:Who cares if they host some infringing content

[Anonymous Coward]

YouTube users post infringing content, YouTube the organization does not.

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.

Uhh, it's not like "DMCA GOOD" or "DMCA BAD"...

[TheDarkener]

C'mon, we're smart people, right? You can't just blanket the DMCA and say "BAD!!" or "GOOD!!" - things like this are HUGE in content, with many sections, etc... there are probably some things that the EFF can agree with, as well as some that they don't agree with.

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.

Re:For those of you keeping count...

[Reality Master 101]

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.

Re:Who cares if they host some infringing content

[bopo]

Please. The transcoding and posting are completely automated, it's not like they have 1,000 people sitting at computers running ffmpeg who get excited each time someone uploads a Daily Show clip. Holding YouTube accountable just because the end-user doesn't perform every single step needed to get the damned video up would be like arresting a mail carrier for delivering somebody else's letterbomb.

Re:For those of you keeping count...

[dharbee]

Also unlike most people, he can actually back up what he thinks with vast amounts of cash, allowing him to buy as much face time as he needs.

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.

Re:Must be Law 2.0

[Dachannien]

I'm a slightly published author of a couple of academic papers. Everybody knows that there is infringing content posted by the users of a variety of free web hosts, where the web hosts get revenue from advertising alongside that content. Ergo, according to CubanLogic(tm) 2.0, I should be able to sue Geocities if I discover my papers published there without permission, safe-harbor-be-damned.

Don't throw me in that briar patch, br'er MAFIAA!

[Tackhead]

> 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!

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.

Re:Who cares if they host some infringing content

[ajs]

YouTube users post infringing content, YouTube the organization does not.

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.

Actually, all modern FTP servers have the ability to "transcode" into compressed formats on demand, so the argument holds no water. Translating between presentation formats doesn't involve any step at which a human being could reasonably be expected to identify infringement, and that's really what the spirit of the safe harbor provisions are about.

Re:Shortly there after...

[ajs]

I don't get it. Why is it shocking that the EFF would defend the provisions of the DMCA that make it even vaguely similar to something that's only mostly unreasonable? They still want to see the law removed on Constitutional grounds, but what it's the law of the land they at least want to see that its teeth not get any sharper.

Solution

[Greyfox]

Give Cuban and the EFF Lawyer both a brick and lock them in a room. Survivor wins the case. Post the footage on Youtube.

Really the system is much too complex today. We need more brick-based justice!

Wake Up!

[Anonymous Coward]

As a non us citizen (alien? hah!), I find this dmca stuff all so boring.

You have draconian laws instigated by ugly controlling types which you seem to feel the need to "obey" lest you spend your eternity in hell. Wake up, you are already there.

Look at the second article after this one, "Private File Sharing to Remain/Become legal in EU".

It has always been this way under English law and many other countries (oz to be exact), and was in the us prior to the dmca I believe.

The dmca was a land grab that would never have happened if not for 9/11, and couldn't happen in most other countries where the views of the people count.

No judge in oz is ever going to entertain riaa type prosecutions unless there was evidence of financial gain. And that would have to be more than some little punk making $50 selling ripped cds at the local market every weekend.

You argue the point back and forth without ever achieving anything, while the fat bastards laugh at you and watch the meter run.

You are led to believe that your version of democracy is the greatest freedom, yet you are "controlled" at least as much as those under the average dictatorship.

Your politicians wont change until you change.

Get a life.

Get over it.

Move on.

AC.

Re:Who cares if they host some infringing content

[Score Whore]

So you're saying you'd be ok with my opening up my murder factory? Where you drop the "product" into a shoot at one end and through an automated process the "product" is shot, stabbed, sliced, diced, electrocuted, drowned, whipped, ground, fricasseed, grated, steamed, boiled, broiled, fried and finally spit out the other end in neat little individually wrapped packets. And I can point at legitimate uses of people dropping their cows in there, and whenever the family of any non-cow writes me a letter I'll go ahead and pull the "product" from the line. You're OK with that? It's ridiculous I know, but so is your "it's automated" defense.

You need to ask the question whether Google should be allowed to profit from massive copyright violation just because it is hard or expensive to not do so. We generally don't allow any other industries to get away with "harmful" behaviors just because it's hard or expensive.

Re:Who cares if they host some infringing content

[Original Replica]

So you're saying you'd be ok with my opening up my murder factory? Where you drop the "product" into a shoot at one end and through an automated process the "product" is shot, stabbed, sliced, diced, electrocuted, drowned, whipped, ground, fricasseed, grated, steamed, boiled, broiled, fried and finally spit out the other end in neat little individually wrapped packets.

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.

Re:Who cares if they host some infringing content

[Score Whore]

He's not on target at all. First, he'd have to skip from the manufacturer of the woodchipper to the owner of the woodchipper. 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. And the owner of the wood chipper somehow made money off of intestines and brains spraying from the outlet. And even after someone coming along and pointing out that "Inside that sack right there, that's Bob." So they pull Bob from the machine. And then they calmly watch and collect money as someone else chucks Bob right back into the machine. And when someone says "Gosh, this is terrible. The way all these people are dying in your wood chipper." They answer with "Not our fault. We've got a sign right there that says 'Don't put people in the machine.' and whenever anyone asks us to we take people out of the machine. It would cut into our profit margin if we had to actually look at what was being put into the machine before we started making money off it." Then he'd be on target.

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. They are nothing like an ISP.

The real question is will Google be able to make their billion dollars back before the law is amended to eliminate this particular situation. My guess is that the second they have to screen each video clip or that they must be able to identify the exact person (ie. real name and address) who uploaded a particular clip, Youtube will grind to a halt.

Re:Who cares if they host some infringing content

[Original Replica]

Youtube built a system that facilitates copyright infringment.

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

[cpt kangarooski]

First, he'd have to skip from the manufacturer of the woodchipper to the owner of the woodchipper.

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:

the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes [an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received].

Google provides YouTube, which is an online service. So as far as anyone cares, it is an ISP.

Re:Who cares if they host some infringing content

[WozNZ]

Actually, YouTube in this situation is EXACTLY the same as an ISPs, hosting company or other companies or sites that make money by providing webspace (in all its shapes and forms) as a service. Where end users has the control over their space.

As long as YouTube meet the Safe Harbour rules they are protected by it. The fight will be on how the rules are interpreted.