Heavyweights Clash Over Policing Repeat Copyright Infringers

SolKeshNaranek tips a story at TorrentFreak about an ongoing copyright case that revolves around how much effort websites need to expend to block repeat infringers after responding to DMCA requests. In 2011, a judge ruled that a website embedding videos from third parties had correctly removed links to infringing videos after receiving a DMCA request, but failed to do anything to police users who had created these links multiple times. For this, the judge said, the website would be required to adopt a number of measures to prevent repeat infringement. Google and Facebook wrote an amicus brief opposing the ruling, as did Public Knowledge and the EFF. Now the MPAA has, unsurprisingly, come out in favor. They wrote, "Contrary to the assertions of myVidster and amici Google and Facebook, search engines and social networking sites are not the only businesses that desire certainty in a challenging online marketplace. MPAA member companies and other producers of creative works also need a predictable legal landscape in which to operate. ... Given the massive and often anonymous infringement on the internet, the ability of copyright holders to hold gateways like myVidster liable for secondary infringement is crucial in preventing piracy."

Activist Judges

[Hatta]

Nothing in copyright law or the DMCA suggests that anyone should suffer any sort of penalties for obeying DMCA notices. There is no limit on the number of DMCA notices you are allowed to obey in the DMCA. Where did this judge get the idea that the law requires this?

Three Strikes

[Anonymous Coward]

I think the appropriate action is to kick a user after three verified copyright violations. Also, the site should kick a copyright holder after three verified false copyright claims.

Cause what's good for the goose is good for the gander.

The big IF

[rtkluttz]

IF the copyright holders could guarantee that "fair use" would not be trampled, I would agree with them on the secondary infringement. But in the real world where most anonymous users use copyrighted works as background music for their kids birthday party and it STILL gets taken down, then no one should be REQUIRED to take anything down until it is proven that real infringement has actually taken place. There needs to be real oversight to copyright infringement claims.

DCMA

[the eric conspiracy]

Seems pretty simple. The DCMA has a clause in it regarding repeat offenders. Nothing new, it's always been there. Hosts have to do something to block repeat offenders or they lose safe harbor. Google knows about it too - they booted a bunch of music blogs for this very reason.

The problem is how the heck are they going to do that? The vernacular of the web is such that people can just establish a new account if the one they have is blocked.

It's just one of the many problems with the DCMA - a law that seemingly is quite outdated and needs a lot of rethinking.

Re:You mean infringers like China? Or IBM?

[Githaron]

Copyright should only be 17 years, renewable only by the Person (not Corporation) that created it, during their lifetime and in the year of their death by their heirs.

Why does copyright need to renewable at all? If you can't make a profit off something in 17 years, you need to consider going into another business. Also, I would argue 10 years would be a more appropriate copyright length.

Re:You mean infringers like China? Or IBM?

[WillAffleckUW]

Well, it used to be 13, so 10 years is a good negotiation point.

Regardless, only a Person who is a Human should be able to hold Copyright.

Re:Time for the MPAA to gasp it's last breath...

[Runaway1956]

Bingo. Money, money, money. If we can't rape the uploaders, we'll rape the gate keepers. Money, money, money.

Meanwhile, RIAA and the MPAA aren't giving a goddamned thing to the artists. Nothing. Not one settlement has ever netted an artist a single dollar. Raping the artists is so much FUN, but they get bored, and they want someone else to rape.

Re:Activist Judges

[hemo_jr]

You cannot assume a lack of response to be an admission of guilt. You cannot even assume that the account holder even was aware of the notice(s) or take-downs.

Re:Activist Judges

[NeverSuchBefore]

The DMCA is an awful piece of legislation, anyway. Too often has it been abused. It encourages the "shoot first, ask questions later" mentality that we've seen so much of. Great if you don't care about collateral damage! Awful otherwise.

And what about fake DMCA notices? Should those users be "policed," too?

Re:You mean infringers like China? Or IBM?

[hemo_jr]

We are no longer living with 18th century production and distribution technology.Copyright and patent lengths were originally implemented when it could take months to distribute a work across a country and years to distribute it across the world. We also have tools that cut the time of artistic production e.g. books don't have to be written in longhand, presses no longer need to be set and cranked by hand, Now with modern tools, artistic production is quicker, and distribution is virtually instantaneous. The extension of copyright past the original duration makes no sense from this perspective.

Further, the original justification for copyright - that it promotes innovation in science and the arts is not served by extending copyright length. The fact is that extended copyright length impedes creativity by limiting what we can be creative about.

And passing the buck.

[Jane Q. Public]

In regard to certain provisions of the DMCA and other measures, someone please explain to me where they can find some long-standing legal principle that allows one interest group to make other parties separately responsible and liable for protecting the first group's interests? Because that's what they are doing here. Correct me if I am wrong, but I do not believe any such legal right or principle exists. Which makes much, if not all, of the DMCA and certain other recent laws extremely questionable on the grounds of simple long-established legal principle.

Where else in law does anything like it exist? Are telephone companies liable if people play "illegally" copied tunes for their on-hold music? Of course not. For that matter, if someone is using a telephone modem or other direct means of communication, is the telephone company liable if the users transmit copyright-infringed material? Again, of course not.

Why? Because it is not reasonable. The telephone company is nothing but a "common carrier". They deliver data from one place to another; nothing more. Not only are they not responsible for the content of that data, they are specifically exempt from any responsibility, because end-users are solely responsible for what they send and receive.

Not only that, but it is illegal for telephone companies to use means to determine the contents of such transmissions, without a legal warrant. While other recent laws, themselves at least as questionable about the DMCA, pretend to authorize Federal authorities to intercept that information, it is still illegal for the telephone carrier itself to do so.

Why should ISPs be any different? Rationally, they fulfill the same "ecological niche" as a telephone company. They provide a service to carry data packets from one end user to another. And data repositories, if they are on the up-and-up, are also pretty much in the same boat; they act merely as storage places for private data that is uploaded and stored. There is no rational reason they should be responsible for any content, UNLESS they are knowingly and actively aiding and abetting crimes committed by someone else. Just as, for example, the owner of physical storage rental units is not responsible for the actual contents of said units (they make you sign a paper to that effect)... UNLESS they are knowingly aiding in the commission of crimes.

So the whole concept is bullshit from the start. ISPs and data repositories owe the RIAA and MPAA nothing, either ethically or in legal principle. There is not a single rational reason behind holding them responsible for user-generated content, EXCEPT the rational argument that it is the easiest place to stop it. But ease is not a binding legal principle. The US Supreme Court more than once has ruled that difficulty of enforcing a law is not an excuse to bypass long-standing legal precedent.

The only explanation for this kind of plan is under-the-table cronyism between big businesses and government, which has no place in justice. There is nothing in here for the consumer at all. No protection, no improvement of any market (on the contrary), and no recourse.

It's just bad.