Quote:
Originally Posted by The Porn Nerd
Robbie I can break it down for you easily with one single legal word that is the basis for everything in this thread:
Liability.
IF Pornhub (or any other tube) took down even ONE "illegally pirated video" (as in the naughty America example you posted) the tube would then ACKNOWLEDGE they have the ability to discern pirated videos, thus opening up the floodgates. It's called liability and it's the #1 issue large companies care about.
If someone sends a DMCA they respond but barring an actual, official, 100% "legal" DMCA request, the videos MUST stay up even if the tube owners know 100% the video is pirated. Taking it down without a DMCA opens up the tubesite to all kinds of legal messes. The LAW says this so that's what the tubes follow.
As has been said MANY times here on GFY: If we don't like it, change the DMCA law. This is why I always call for lobbyists in Washington. Nothing else will change jack shit. Sorry.  |
Quote:
Originally Posted by TheSquealer
I think the bigger point is that reviewing every single video negates the safe harbor defense, which is the argument that you don't and can't review every single video. If there is no safe harbor, DMCAs aren't relevant. (i think?)
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Precisely. Understanding that court cases are decided by judges, and law is of less relevance(believe it) than case law. In fact there are examples where the Supreme Court has ruled something, but judges do the opposite because of established case law.
If, as a plaintiff, you can produce proof that the defendant had the ability to police content proactively, and yet did not in all cases, you demonstrate to the judge that the defendant has no credibility when it says it can't police content.
By never acknowledging in any form or fashion that it has that ability, the defendant protects itself from being condemned by its own behavior. You can see this sort of silliness all the time in court, with defendants failing to produce bank records and then claiming they have no access to them, or lost them. You or I would say, "can't you log on and ..." but the judge can't say that, and people are rarely penalized. By simply stating blankly that they can't do something, they create a burden that can't be passed without concrete evidence, even in a civil case.