Quote:
Originally Posted by FightThisPatent
my article was inspired after reading xxxjay's 7+ page thread about his love for tubes:
http://www.gofuckyourself.com/showthread.php?t=917174
repost of one of my comments:
good summary of DMCA from a website owners point of view for complying with DMCA, but you can also view it through the eyes of a content producer looking to enforce DMCA:
http://www.mondaq.com/article.asp?articleid=74294 [view]
this was an interesting point of the article:
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10. Do Not Receive A Financial Benefit Directly Attributable To Infringing Activity Within The Company's Control
If an online service provider has the right and ability to control infringing activity, it is eligible for the safe harbor if it does not receive a financial benefit directly attributable to such infringing activity. The "direct financial benefit" issue is complex and necessarily dependent on applicable facts and circumstances. Although this issue still remains to be clarified by the courts, Viacom has made arguments regarding direct financial benefit in its lawsuit against YouTube. To the extent that the Viacom v. YouTube case results in a decision, this issue would be one of the more interesting DMCA legal questions the case addresses.
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whether a legit community site that allows user uploads or an illegal tube site, both generate revenue from the advertisement around the content.
some illegal tube sites offer a "premium" version that gives access to longer videos, better quality, etc.. this would certainly violate DMCA safe harbour provisions for a paid-membership model using stolen content (oh the irony of paysites who used usenet content inside members areas and now crying foul about DMCA) |
an upsell of licienced content from a page with "stolen" content is not direct attributed to the infringing activity.
viacom is making arguements to that effect but the courts have not ruled in such a favor.
likewise the otherside of the arguement, that uploading a small clip from a tv show (ie quest crews "orquestra" performance) should count as commentary (this is my favorite quest crew routine) in a video as a medium world would protect them completely without any Safe harbor provision requirements.
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takedowns have to occur in a "reasonable period of time"... 24-72 hours.
content producers could coordinate their DMCA notices to do a "DMCA bombing" at the same time.
you would have to have a shared IP attorney ready to then file a lawsuit if the DMCA process wasn't followed. Having a large amount of complaints that were disproportionate to the "legal" content on a tube site, could show that the site owners do know about infringing material.
Fight the YMCA!
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DMCA bombing like any Denial of service attack increase time demands, and therefore can justifiable increase "reasonable period of time". If they get bad enough, host can ask clarifying questions since they must only respond to valid take down request. Spelling out fair use ruling and demanding "confirmation" that they content producer explictly "accepts" the monetary damages for a false take down notice would be a counter solution to such an attack.