Quote:
Originally Posted by Nautilus
I surely do understand what a "subject to" clause means, and it certainly doesn't mean priority in a sense you're trying to argue.
Free speech doesn't mean free paper (free hosting) to write your speech on.
Fair use doesn't mean free paper (free hosting) to post your commentaries/parodies at.
If you're denied posting your materials you believe protected by fair use at a public service site, go on and post it at paid host which is fully covered by safe harbor and fight in court if you recieve takedown request - that's perfectly balanced imo.
If the company operating a website is now a publisher, and is fully responsible to make sure all materials are either licensed or fair use - we're not having problems anymore with piracy issues, and fair use is still protected on the same level it was before the amendments.
I think we should push for such changes in court, under the common law such things are possible - if courts will start recognize companies directly operating websites as publishers and not ISPs, that will limit the infringing activity a great deal.
That's more than possible I believe, because DMCA specifically says ISPs are those who are not in direct control of things and have no direct knowlendge of the infinging activity - so to amend this in court and to exclude publishers from ISPs lists is possible. We just need to push in the right direction, instead of using some remote accussations such as loss leader that have a little chance to fly in court.
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1. you ignored the notwithstanding clause
2. your old definition of publisher "instantly available" would make every host like mojo liable for the actions of their client
3. your new definition is already how the law works, if you can prove that the company itself uploaded the content, without believing they had a right too (ama screwing up on the licience and allowing the behavior and then bitching because it wasn't what he ment the licience to authorize) they have no safe harbor protection.
btw if the free site has all the traffic, being restricted only hosting it yourself is censorship. Just as much as saying you can make your speech but you have to make it in the jail cell where no one can hear you speak.
If no one can hear your parody, even though you have a right to create it, you are being censored.