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Originally Posted by kane
For the millionth time. This case will be tried in the U.S. We do not have access shifting. He can get rid the of the charges for the few countries that do and reduce the count, but he still will face all counts in the U.S.
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not if the safe harbor provision still applies
the law says you must remove the file OR block access it the service providers choice.
youtube does not delete the file, they simply block access.
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It is his right to make this argument, but as I said before by doing this he is admitting to doing things he claims he hasn't done. By making this argument he is saying, "We let people copy files because we felt access shifting applied to them." If it is ruled that access shifting doesn't apply he is fucked. He can't suddenly then say, "Well, we didn't really do it." Once he argued that they did it under the guise of access shifting.
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bullshit he doesn't have to claim access shift only, he didn't do that in the interview
he did a laundry list
backup, recover, access shifting, he could also include time shifting and format shifting.
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Geo IP blocking has existed for years. He could easily block access to countries that don't allow access shifting and his problem is solved.
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what if a Canadian is traveling to the United states
you would be denying him his right to access shift just because not in canada
What about all the other fair use right, backup recovery ...
once he has it uploaded in one region (canada)ab ility to get it back would be covered by the other fair uses.
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Supposedly the government has emails where Kim and the other guys in his crew admit that they know they are doing illegal stuff and they don't care. If that is the case he is fucked and the government will have an easy time proving him guilty.
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right the email exist where they admit they are guilty, exist and they didn't destroy it
oh and the government didn't bother to put that evidence in the brief we have already seen.
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I still think he will cut a deal. If the emails and evidence exists that shows the people operating the site knew they were breaking the law and didn't care and one or more of his buddies is willing to testify that Kim knew the law was being broken and did nothing about it, he is fucked. Short of actually convincing the jury that access shifting should exist in the U.S. or that this was some kind of convoluted fair use situation he is almost certain to be found guilty. If his choice is to face potentially 50 years in jail or cut a deal and serve a few years and pay a hefty fine he likely will take the deal.
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Your missing the possibility that blocking access is enough given the fair uses support (backup/recovery/access shifting/time shifting/format shifting) to qualify for the safe harbor provision
remember the law give the service provider the choice
you tube doesn't delete the uploaded file they simply block access
if you have to delete the file instead of simply blocking access then every online back would be worthless because if your password got hacked the only way they could avoid copyright infringement charges was to wipe out your backup.