Veoh Once Again Beats UMG (After Going Out of Business) 229
NewYorkCountryLawyer writes "Veoh has once again beaten the record companies; in fact it has beaten them in every round, only to have been forced out of business by the attorneys fees it expended to do so. I guess that's the record companies' strategy to do an 'end around' the clear wording of the DMCA 'safe harbor': outspend them until they fold. Back in 2009 the lower court dismissed UMG's case (PDF) on the ground that Veoh was covered by the DMCA 'safe harbor' and had complied with takedown notices. The record companies of course appealed. And they of course lost. Then, after the Viacom v. YouTube decision by the 2nd Circuit, which ruled that there were factual issues as to some of the videos, they moved for rehearing in UMG v. Veoh. Now, in a 61-page decision (PDF), the 9th Circuit has once again ruled that the statute means what it says, and rejected each and every argument the record companies made. Sadly, though, it did not award attorneys fees."
US Law (Score:3, Informative)
The adversarial system is the biggest injustice ever created. Such a system dates back from the times when people solved disputes by beating each other over the head with clubs. The US legal system literally derives from the law of Germanic tribes back in antiquity.
The adversarial system turns everything into a game. Fact is irrelevant. Law is irrelevant. Justice is irrelevant. All that matters is whose lawyer is the best at legal gamesmenship. A typical civil trial in the US is a game of trying to bury the other party in motions and frivolous lawsuits until they can no longer afford to fight it. The adversarial system ensures that no help is given to a party who has a significant financial disadvantage because the law is simply not important and if you can't afford a good lawyer, that's too bad and you're going to go bankrupt even if you've done nothing wrong.
Civilized countries (e.g. the majority) realized a long time ago that the adversarial system is not just. In most countries, the inquisitorial system is used in which the judge, rather than the lawyers, are the ones who do the investigating and asking of questions. In an inquisitorial court, it is not a competition to see which party has the best lawyers and legal arguments but rather a search for the truth.
Veo out of business? (Score:5, Informative)
The current Veoh appears to show only trailers or brief snippits, with links to paid-for sites
Re:UMG has screwed me out of 2 jobs. (Score:5, Informative)
That may be true. I'm a developer, so I can't comment intelligently about the financial side of things. It may be that Veoh would have went under anyway, but we would have lasted a lot longer without those attorney's fees, and without the chilling effect the lawsuit had on us. I was told that some companies did not want to advertise with us because of the lawsuit.
Re:US Law (Score:5, Informative)
In an inquisitorial court, the notions of "fairness" and "justice" are determined by the inquisitors, rather than the people actually harmed. Nevermind how much an offense actually harmed you - it's what the judge thinks that matters. That sentimental statue that the mugger smashed? The one your great-great-grandmother carved while on a ship coming over from Europe? In the eyes of the inquisitorial court, it's just a trinket, and is of no consequence.
While an inquisitorial system does give a more objective sense of justice, the people involved don't really get any outcome that seems fair. This is why inquisitorial systems in practice have such poor reception. Consider how much hatred is seen even here on Slashdot for arbitration clauses in contracts. People expect that the inquisitorial arbitration will simply side in favor of the bigger company, and don't expect a fair chance to present their own side of the story.
Inquisitorial systems are also games, but the game is different. Rather than argue for one's case with reason and law, one gambles with the statistics of inquisitors. Since there is no risk of of encountering a particularly skilled opponent, any criminal can simply adjust their illegal activities to the skill of the state, since only the state can argue against them. A few well-placed bribes can ensure that investigators never really find anything too badly wrong, regardless of how the aggrieved may want to interpret the law.
The adversarial system is based on the concepts that only the aggrieved can determine how badly they've been harmed, and the state cannot be implicitly trusted. The government is supposed to be only the representative of the society, closely following society's standards for morality and formality as the plaintiff's arguments change. In an inquisitorial system, the state is assumed to be an infallible and absolute embodiment of fairness. The inquisitorial system's opinions of right and wrong only change as judges retire.
That's just a few reason why most countries actually have an adversarial system for most grievances, and only a handful [wikipedia.org] actually use an inquisitorial system.
Re:Another such victory... (Score:5, Informative)
"Some of his battles, though successful, cost him heavy losses, from which the term "Pyrrhic victory" was coined". [wikipedia.org]
I thank Russotto for presenting such a fine example of what is meant by that phrase.
Re:Sad (Score:5, Informative)
Companies will simply wise up and shift to countries like Australia where loser pays and losing one case can set powerful precedents and barretry laws can come into pay, not only does loser pay but they can be sued for damages and penalties. Quite simply if you are becoming the target for bullshit lawsuits remaining head quartered in the US is crazy and a shift to Australia makes legal sense.
Re:Sad (Score:4, Informative)
we don't have loser pays
Correction. In copyright cases, the court has discretion to award attorneys fees to the prevailing side. 17 USC 505 [cornell.edu]
Re:Sad (Score:5, Informative)
There is no expiration of trademark.
First off it in a way it can "A trademark registration may remain in force indefinitely, or expire without specific regard to its age. For a trademark registration to remain valid, the owner must continue to use it. In some circumstances, such as disuse, failure to assert trademark rights, or common usage by the public without regard for its intended use, it could become generic, and therefore part of the public domain." Furthermore Universal never owned the trademark.
"First, Universal knew that it did not have trademark rights to King Kong, yet it proceeded to broadly assert such rights anyway. This amounted to a wanton and reckless disregard of Nintendo's rights. Second, Universal did not stop after it asserted its rights to Nintendo. It embarked on a deliberate, systematic campaign to coerce all of Nintendo's third party licensees to either stop marketing Donkey Kong products or pay Universal royalties. Finally, Universal's conduct amounted to an abuse of judicial process, and in that sense caused a longer harm to the public as a whole. Depending on the commercial results, Universal alternatively argued to the courts, first, that King Kong was a part of the public domain, and then second, that King Kong was not part of the public domain, and that Universal possessed exclusive trademark rights in it. Universal's assertions in court were based not on any good faith belief in their truth, but on the mistaken belief that it could use the courts to turn a profit."
http://en.wikipedia.org/wiki/Public_domain#Trademarks [wikipedia.org]
Royalties on something they don't own? Sounds like thievery to me.
I honestly cannot speak to the MP3.com case as I'm unfamiliar with it.
http://en.wikipedia.org/wiki/UMG_v._MP3.com [wikipedia.org]
Essentially UMG sued MP3.com for everything then bought them up at a discounted price just to bury them. It was over the my.mp3.com service which is very similar to what Amazon.com is offering today. The real reason Universal sued for so much was MP3.com was a competitor to Universal and Universal hates competition.
If an artist signs away their rights than it's a problem for the artist. No one forces them to sign. I know several bands that never signed and all of them made a good living prior to the theft of their works.
Except they renege on their contracts. They are telling their artists one thing then doing another. I do agree that artists shouldn't sign with UMG as they are not trustworthy and they are way behind the times.
P2P has done more damage to the independent artist than anything else. Stop trying to blow smoke up my ass.
Not necessarily. P2P can be useful for getting artists known. Not all artists mind that their music is shared. That doesn't detract from my main point, Universal is a bully and a thief just as it always has been. The best thing is to avoid anything by Universal rather than download or purchase anything by them.
Re:Sad (Score:3, Informative)
Yep, exactly right. There were two points that the court used to decide that MP3.com was making illegal use of music: that the company had bought copies of CDs and put those rips on their servers rather than using bits uploaded by users, and that the service used a digital signature check so you didn't have to actually upload all the bits of your song. (If your signature matched one of their purchased CDs they pointed you at those bits.) What this really meant was that MP3.com was ten years ahead of its time and that the court was technologically illiterate. MP3.com was doing data deduplication with distributed checking, but they couldn't say that in court because the terms didn't exist yet.
To address the two points in a bit more detail:
When MP3.com put a CD rip on their servers they had done nothing wrong. They had not yet shared any music with anybody, merely backed up music that they already owned, and the legal right to back up data is well established. There wasn't even a DMCA violation; CDs do not have any copy protection. At this point there is one copy of a CD (or an MP3 of it) on their server and it belongs to a legal owner of the music.
When they did the signature check and then shared the rip with a customer, they still hadn't done anything wrong in modern technological terms. The customer had stored a copy of those bits, and their server and client software used deduplication and pointed that customer's file system at the copy stored by MP3.com rather than at a copy uploaded by the customer. The result is exactly the same as if the customer's CD had been uploaded and a separate copy stored; it was just done at much lower cost to MP3.com and to the customer. There are now two virtual "copies" on the server; one belonging to MP3.com and one belonging to the customer. Both presumably legally own that music, and thus all is still well. Additional customer uploads add more virtual copies but don't change the legalities.
The only questionable thing about the MP3.com process is sorting out whether the customer owned the uploaded bits in the first place. But there are now many providers now that let you upload bits to the cloud: Amazon Cloud Drive, Google Drive, Dropbox, and many more. The storage provider is not legally liable if it turns out that the customer does not own the bits; the customer is. Those companies are not currently discussing whether they are doing any deduplication of customer-uploaded data but they probably are. Amazon DOES deduplicate MP3s bought from Amazon and the instant MP3 versions of CDs that were purchased from them.
Sadly, there is no way to unwind all the damage done by the court. That would require that Universal return MP3.com to its former owners, pay all their court costs, and restore all the music that became unavailable when MP3.com went offline. Not to mention that Universal would have to somehow repay all the money that MP3.com would have made in the intervening years, and repay all the people who had uploaded music to MP3.com all the money they would have made when people downloaded their songs. Figuring out who all the damaged parties are and the amount of the damages is obviously impossible.