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Originally Posted by WarChild
Hey Q, long time no talk buddy. How've you been?
Yeah, I have no doubt what you say about US hosting, and doing business in the US is true. I guess what I'm wondering is what new avenues for the defense open up because of the internation interaction.
For instance, and this is just a made up example, what if a tube site hosting in the US but doing business as a Canadian company were to be sued for infringment? Now if a US court wants to assert jurisdiction in the matter, then surely the defendants are granted other rights associated with US law? In this particular case, would the company not be able to make a DMCA defense, assuming they had been compliant under the DMCA (Can a foreign company even register a DMCA agent in the US?)?
You would then expect the plaintiff to argue that it was NOT user uploaded but rather uploaded by the site owner. Here's where I think it might get tricky. First off, does a Canadian company have to respect a US court order? Can a US judge force records to be turned over? I would expect they would first need a Canadian Judge to issue the order or subpoenas. The whole situation would then be muddied by things like Canada's Privacy Laws which happen to be some of the strongest in the World. It might not even be legal, in Canada, for a hosting company to turn over server logs or other things that could violate the privacy of Canadians.
Anyway, yeah tricky stuff for sure. Be curious to see what the outcome is here.
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I'm doing well, sounds like you have been, too; you're planning a move to an island paradise sometime soon, no?
The hypothetical you describe (Canadian company hosting and/or transacting business in the U.S.) has played out to some extent in some actual cases. So far as I'm aware, none of those case have been
fully adjudicated, but there have been settlements favorable to the plaintiff in a couple of instances, and I suspect we'll see more cases like that in the future.
The question of how a plaintiff would go about proving that a site operator was uploading the content of the tube is something that would be examined through the discovery process. Digital discovery is a powerful thing, and can be used to obtain internal company emails, lawsuit-relevant emails to third-parties, and a wide variety of other information. If a site operator has been at all careless in how they conducted their uploading, or contracting of uploading to a third party, that fact could very well be found through the discovery process.
As to use of DMCA as a defense, yes -- that's available to a non-U.S. defendant sued for copyright infringement in a U.S. court. Some UGC sites never do one thing or another that is required of them under DMCA in order to receive the benefit of the DMCA's safe harbor stipulations, however, and that can create real problems for them if they assert a DMCA defense in court. For example, they might not have compliant DMCA disclaimers on their sites, or they might never designate and register a compliance agent with the U.S. Copyright Office, or never establish and reasonably implement a "repeat offender" policy.
In order to be eligible for DMCA safe harbor, you have to do ALL of those things listed above. That's a fact that I think has escaped some UGC site operators over the years... and continues to escape some of them, from what I have observed. DMCA safe harbor isn't the only defense available to site operators; theoretically, at least, there might be fair use arguments they could bring into play
This is all substantially more complicated than I'm capable of describing, so for those reading this, don't run over to your lawyer and say "let's sue some tubes, it sounds easy!" ;-)
Realistically, lawsuits are rarely easy, and it's even more rare for them to be cheap to bring. Suing a major UGC site operator is probably beyond reach for a lot of producers/rights holders, simply due to the expense involved. Having said that, it's also not hopeless from a prospective plaintiff's perspective, and if you retain quality legal counsel that has a strong background in intellectual property law, it's an area that is ripe for litigation, for sure, under the right factual circumstances.
All of this is better discussed with a real attorney (as opposed to the armchair variety I represent) of course, and any such case will always hinge on the specific facts at hand in that case.