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Originally Posted by Tempest
The entire safe harbor provision is being abused... Once some people start to take these sites to court and the law can answer, I'm sure there will be some changes.. For example..
It can be argued that these sites do not qualify at all for the following reasons.
(c) The Internet user, not the service provider, must select the origination and destination points of the communication [512(a)(3) and 512(k)(1)(A)];
No copy of the communication is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients [512(a)(4)];
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ok your interpretation may make you feel good but it doesn't make sense in the context of the law, if you must EXPLICTLY define the intented recipent then web host would be liable for the actions of their hosting clients, because when i put up a domain it goes to anyone who enter the url.
this clause is intended to stop a service provider taking copyright material, putting it up on their own site, and saying we are immune because person a did it too.
While they would be immue for person A actions their own would be for their own
To comply with this a service provider would simply have in their publish functionality (upload) TOS that the content is available to everyone. therefore the anticipated recipients would be everyone comming to the site. Your choice as an uploader would be to share with everyone or don't share using that site.
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(g) No copy is maintained on the system or network in a manner ordinarily accessible to anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, and provision of connections [512(a)(4)].
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but in the case where the TOS requires you to share with everyone, that time period would be infinite.
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(e) The service provider must not modify the communication selected by the Internet user [512(a)(5)];
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there is a different between the medium (format) and the message (communication). IF your interpretation was correct, buffering, reverse proxy, bandwidth optimization (showing lower grade images /video/ to slower connections) would all be illegal.
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This can also be argued the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. This would imply that anyone could notify them of specific infringing material and if they didn't investigate and remove it, they could be held liable.
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hense the take down procedures defined by the DMCA
but that not the case since we are talking about tube sites that comply with the take down request, so they retain the protection of the Safe Harbor provisions.
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Depending on how the videos are presented, using SERP results etc. this can also be argued The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)]
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again case law goes against you there, hosting providers charge monthly fees for hosting packages the more copyrighted material hosted the more money the make. The attributable is for direct financial gain from the infringing material, tube sites generate indirect financial gain thru advertising.
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And of course this is a big one (a) The service provider is an entity offering the transmission, routing, or providing of connections for digital online communications [512(k)(1)(A)]; How is it that tube sites are actaully routing and providing communications?
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Did you notice the word
transmission, you were the one quoting it back, tubes are transmitting the material, there is an or between those words, which means they don't have to provide routing or provide of connets for digital online communication to be protected.
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If you're hitting a tube site with take down notices, you need to keep track of who the "user" was that was uploading.. If you can show that those users are constantly uploading infinging material, then the tube site can also be found liable since they're are supposed to The safe harbor provisions require the service provider to include in its copyright infringement policies a termination policy that results in individuals who repeatedly infringe copyrighted material being removed from the service provider networks. [512(i)(1)(A)] This termination policy must be made public in the terms of use that the service provider includes in its contracts or on its web site.
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hence my suggestion to use removemycontent rather than bitching and whinning
or calling a boycott of a company which is choosing to play within the law.
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Bottom line, this was never written so that tube sites, file storage sites etc. can do what they do. It will take court cases and legislation in order to fix it. I see plenty of ways these sites could be taken to court but no one is doing it.
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never said it lets them to get away with anything they want, just pointing out that the tube sites are complying with the laws and are entitled to the safe harbor provision. If you can prove that they are uploading the videos themselves or any of the other claims made by webmaster here you can sue them. But until you can produce such proof, what they are doing is legal.
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By the way.. Nice way to deflect attention away from what this thread was supposed to be about.
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Brazzer is making a business decision on how to deal with tube problem, they are complying with the law, it is there right to do so, and if your ratios are going down because if it that is your problem. Calling them theives (which they are not) just because you don't like their choice is just fucked up.