Quote:
Originally Posted by gideongallery
it not controls and monitors/manipulate it UPLOAD and only UPLOAD.
you can control and monitor (no porn) you can manipulate (auto watermark) your trying to significantly weaken the safe harbor by misrepresenting it restriction.
Being able to stop porn (i see naughty bits therefore it out of there) is significantly different then being able to tell if it fair use or not especially when viacom own lawyers didn't get it right (all the mistaken takedown requests).
i am just point out that UPLOADing by a employee is not an automagic win for viacom, you still have the uphill battle of proving that employee was UPLOADING as an employee and not as every day user.
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I'm not arguing weather or not it was uploaded by a employee or not. What I am saying is that they are trying to prove that YouTube manipulates/controls the content on the site. If they can prove that there are systems in place that allow Youtube to manipulate/modify/control content on the site it could disqualify them from DMCA safe harbor provisions.
Here is a bunch of good info about that
http://www4.law.cornell.edu/uscode/17/512.html
Here is a summery:
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.
Using these rules you could set forth this example: Youtube has a filter in place that scans videos for colors that are in the skin/flesh tone range. If it hits a certain threshold the video is flagged and looked at to make sure it is not actual porn. If it is not it is approved and put up on the site. I'm not saying that something like this exists, but if it does, then it would be proof that they have something in place that allows them to monitor/edit/approve content. By doing this is violates the DMCA safe harbor since they are no longer just hosting content, they are selecting content and scanning content before it ever posted. A person could then argue that if they are capable of monitoring for porn they could do so for other things. If there is a question about whether or not something falls under fair use or if the poster has permission to post it, then they could ask the poster for proof that they have the rights to post it. Problem solved.