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How the DMCA Protects YouTube 144

Posted by Zonk
from the that's-gootube dept.
bartle writes "Slate is running an article that analyzes the question of how much legal trouble Google may get in having bought YouTube. Not much, according to the author, and thanks seem to go to a provision in the DMCA that may provide more protection for YouTube than torrent services." From the article: "But what about Mark Cuban's copyright argument? Why isn't YouTube in trouble in the same way Napster and Grokster were? The first difference, as indicated, is that Napster simply wasn't covered by the 512 safe-harbor law, and YouTube is. Napster wasn't "hosting" information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content. It may sound odd that Napster gets in more trouble for helping you find illegal stuff than YouTube does for actually hosting it. But that's the law and why YouTube should really, really thank its friends at Bell."
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How the DMCA Protects YouTube

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  • by twofidyKidd (615722) on Thursday October 26, 2006 @06:09PM (#16601534)
    Does viewing/listening to copyrighted content constitute distribution?
  • by QuantumG (50515) <qg@biodome.org> on Thursday October 26, 2006 @06:11PM (#16601548) Homepage Journal
    the daughters of senators and district attorneys and other rich people tell their parents that YouTube is great. Napster was a little too hard for the estemed gentleman's little princess to figure out, but YouTube isn't.
  • Yes (Score:5, Insightful)

    by cshark (673578) on Thursday October 26, 2006 @06:14PM (#16601600)
    It is the law.
    But that doesn't make it any less absurd.
  • Re:WTF? (Score:2, Insightful)

    by 91degrees (207121) on Thursday October 26, 2006 @06:20PM (#16601666) Journal
    I think its the "predominantly" bit that makes the difference. Most of the stuff on Youtube is legitimate. Most of the stuff on napster was infringing copyright.

    The other part is that the search engine is just a small aspect of the entire site,whereas it was a key part of Napster.
  • well, no wonder... (Score:5, Insightful)

    by MarcoAtWork (28889) on Thursday October 26, 2006 @06:21PM (#16601692)
    does anybody really think that Google didn't spend a lot of time/money/lawyers figuring this stuff out BEFORE shelling out over a billion dollars for youtube? Just because the armchair QBs kept going on about the legal trouble(s) google was going to end up in, it doesn't necessarily make it true.
  • by Itsallmyfault (1015439) on Thursday October 26, 2006 @06:23PM (#16601720)
    When presented with copywright holder's request to remove material, isn't it always granted? Hard to do that when you don't host it.
  • Re:Yes (Score:5, Insightful)

    by QuantumG (50515) <qg@biodome.org> on Thursday October 26, 2006 @06:30PM (#16601816) Homepage Journal
    society doesn't. Society considers it a good compromise to allow creators a limited monopoly on the distribution of their works so as to encourage greater creation of those works. It's just unfortunate that society has no means to test and monitor the effectiveness of this deal.
  • by Zerth (26112) on Thursday October 26, 2006 @06:34PM (#16601860)
    >Except that we have about 15 years of precedent that includes busting FTP warez servers.

    Except that history is all pre-DMCA. The DMCA gives an out for those who demonstrate good faith attempts to prevent infringement and remove all reported violations.
  • by QuantumG (50515) <qg@biodome.org> on Thursday October 26, 2006 @06:41PM (#16601964) Homepage Journal
    Nah. You're being too democratic, ya gotta be more Nietzsche [marxists.org]. Laws are created and enforced by the people with the power. If a law isn't in the interest of the ruling class then it will be ignored.. until such time that it actually starts affecting them, then it will be brutally enforced. No matter how much we might care to think so, few of us living in societies where the majority control the power. We pretend that's the case, but unfortunately the majority of us are more than willing to hand the power over to whoever doesn't rock the boat too much.
  • True (Score:5, Insightful)

    by sterno (16320) on Thursday October 26, 2006 @06:45PM (#16601998) Homepage
    The thing that always hurt Napster was that nobody could go to Napster's system and legitimately say that it was being used for anything other than piracy. There was a handful of legal content on there, burried in a sea of pirated files. On the other hand, YouTube is mostly non-copyrighted material.

    Sure we get excerpts of the occasional TV show, clips from Olberman, and Stewart, but it's not wholesale copying and the quality is twelth rate. Nobody's going to decide to not buy a DVD of a film because they watched it on YouTube. So really I don't see YouTube having a problem. They take down content when notified that it infringes copyright and they move on.
  • difference (Score:5, Insightful)

    by lubricated (49106) <michalp@@@gmail...com> on Thursday October 26, 2006 @06:46PM (#16602018)
    The real difference between napster and google. Money. Google can afford better laws and better lawyers.
  • Shocked... (Score:4, Insightful)

    by Duncan3 (10537) on Thursday October 26, 2006 @06:50PM (#16602070) Homepage
    So Google [big corp XYZ] gets to take other poeples copyrighted content, and make money off of it without paying, but users cannot even share it for free.

    If this wasn't business as usual, I'd be shocked.

    .

  • by sparkz (146432) on Thursday October 26, 2006 @07:06PM (#16602262) Homepage
    So the DMCA is now good ... ? But that doesn't fit the Slashdot groupthink (brain explodes)
  • Re:Yes (Score:3, Insightful)

    by crosbie (446285) <crosbie@digitalproductions.co.uk> on Thursday October 26, 2006 @07:20PM (#16602420) Homepage
    Ahem. Society never had anything to do with it.

    PUBLISHERS thought monopolistic privileges were a good idea, and governments were happy to oblige.

    However, we don't need publishers for digital art, so there's no point creating artificial monopolies on its reproduction.

    The traditional publishers don't like this.

    The new publishers (all Internet users) may sympathise, but it's a very big leap to conclude that society supports copyright on digital works.

    Q1) Given it helps struggling artists pay their bills and save up to start a family, do you support copyright?
    A1) Oh yes.

    Q2) Have you ever lent a copyrighted work to a friend without tracking down the poor artist concerned to ask for their permission?
    A2) Er....

    Q3) Have you ever borrowed a copyrighted work from a friend without tracking down the poor artist concerned to ask for their permission?
    A3) Er....

    Q4) Have you ever made a copy of a copyrighted work without tracking down the poor artist concerned to ask for their permission?
    A4) Er....

    Q5) Have you ever downloaded a copyrighted work without tracking down the poor artist concerned to ask for their permission?
    A5) Er....

    Q6) Have you ever used BitTorrent to obtain a copyrighted work without tracking down the poor artist concerned to ask for their permission?
    A6) Er....

    Q7) Have you ever used a file sharing program and left a copyrighted work in your share folder without tracking down the poor artist concerned to ask for their permission?
    A7) Er....

    Q8) Have you ever modified a copyrighted work without tracking down the poor artist concerned to ask for their permission?
    A8) Er....

    Q9) Have you ever published a modified copyrighted work without tracking down the poor artist concerned to ask for their permission?
    A9) Er....

    Q10) Do you persist in declaring your support for copyright?
    A10) Er....yes?
  • by The Amazing Fish Boy (863897) on Thursday October 26, 2006 @07:31PM (#16602548) Homepage Journal
    FTFA:
    Thanks to the Bells, all these companies [YouTube, etc.] are now protected by a "notice and take down" system when they host user content. That means that if Jon Stewart notices an infringing copy of The Daily Show on YouTube, Comedy Central can write a letter to YouTube and demand it be taken down.

    OK, so the system works because Comedy Central can tell YouTube to take some infringing work down, and that wasn't the case with Napster. I remember the RIAA wanted Napster to take files down, Napster said they couldn't, then they started filtering searches or something. That makes sense.

    But then...
    Why isn't YouTube is trouble in the same way Napster and Grokster were? The first difference, as indicated, is that Napster simply wasn't covered by the 512 safe-harbor law, and YouTube is. Napster wasn't "hosting" information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content.

    Huh? It sounds to me like everyone's covered by this 512, but Napster couldn't hold up their end of the agreement. Nothing to do with "hosting" from what I understand, other than because they weren't hosting the files they couldn't remove offending files.

    Could someone with more information clarify this?

    Also, if this precedent is set, what would stop someone from setting up a "company" that hosts MP3s on a website, same as YouTube hosts videos? The RIAA would swamp the company with requests to take down specific songs, and the community could respond to it.

    Since that's the only way to keep the site up, it would be in the community's best interest to take down the files within a reasonable time limit. I'm sure the files would be uploaded again, anyway. There could even be some points system for taking down offending files.

    What would this achieve? Files would be shared, for one, but I'm not especially concerned with that. It would bleed the RIAA since they would have to have people request every file be removed, individually. Since they'd probably try to use software to find all files made by their artists, a CAPTCHA could be used to ensure a real person is making the requests.
  • by cpt kangarooski (3773) on Thursday October 26, 2006 @07:41PM (#16602676) Homepage
    Providing torrent files wouldn't be direct infringement, but would rather easily fall under one or more forms of indirect infringement. This is because when you help someone infringe, you're in just as much trouble as the infringer is. There are limits to this: not just anything is sufficient to qualify, and where it is, there may be protections for you. This is why Google (in their main business at least) doesn't get in trouble the way that Napster did; there are enough differences that they don't have to fear being shut down. But your average torrent site isn't particularly different from Napster in any way that counts.

    Actually reading the Napster case and the relevant bits of 17 USC 512 would likely prove informative as to just how it works, and why one site, acting one way, might be treated more favorably than another site, acting another way.

    Plus, courts do have some leeway, and on the whole they don't like people with unclean hands. They'll still treat them fairly, but they needn't be friendly, and sometimes that can be serious trouble. Napster tended to run afoul of this sort of thing too.
  • by gregleimbeck (975759) on Thursday October 26, 2006 @07:41PM (#16602694) Homepage
    Ah, yes, Slashdot. Where a discussion of internet copyright issues invariably ends up in a call for coup d'etat.
  • by Typhon100 (641308) on Thursday October 26, 2006 @07:45PM (#16602728)
    Huh? After reading TFA, I like section 512. Sounds to me like this one of the few GOOD things that the DMCA has in it. If hosting companies were held responsible for everything on users uploaded, it would stifle virtually all the creativity the web has given birth to.
  • Re:Shocked... (Score:3, Insightful)

    by Anonymous Brave Guy (457657) on Thursday October 26, 2006 @07:46PM (#16602746)

    Are you surprised? They've been doing this with people's Usenet posts (Google Groups) and web sites (Google Cache) for years, and they're planning to do it with books as well.

  • by Typhon100 (641308) on Thursday October 26, 2006 @07:50PM (#16602804)
    While that's true from a technical perspective, I would be surprised if that held up in court. While you may not be sharing the entire file yourself, you are at the very least taking part in the "scheme". A smart judge (and most of them ARE smart) would cut through the technical crap that he probably didn't totally understand (or care about), and go after the heart of the matter - which is that you're sharing copyrighted content.
  • Re:Yes (Score:2, Insightful)

    by jvkjvk (102057) on Thursday October 26, 2006 @08:49PM (#16603284)
    Not quite. Society, at least a large portion of it, does not seem to consider it wrong to download copyrighted material illegally. Nor do we seem to consider it wrong to share copyrighted material with others. So therefore, they cannot consider it a good compromise to allow a limited monopoly. If We did, people wouldn't infringe, right?

    When the laws and Society have a parting of ways, it can be particularly painful, especially for those on the leading edge of change.
  • You don't say! (Score:3, Insightful)

    by quakeroatz (242632) on Thursday October 26, 2006 @08:55PM (#16603338) Journal
    But that's the law and why YouTube should really, really thank its friends at Bell.
    Thank them for what? It's not like the YouTube concept was a shot in the dark that just, luckily happened to have its ass saved at a critical moment by the DMCA?

    It is, as it was planned.
    The YouTube founders (lawyers) thought of all of these contingencies long before these journalists actually did some research into the DMCA.

    News at 10:
    "20 000 Liquor Stores Lucky Prohibition Over, Reporter Finds"
    "GM and Ford Surprised to Find Existence of Roads All of World, Makes Business Model Possible"
    "Mozilla Foundation Happy To Find Compatible Network Exists for New Browser, "Internet" Apparently Worldwide"
    "Linux Founder Finds Millions Of Computers Compatible With Operating System, Coincidence Drives Growing Userbase"

  • by Artifakt (700173) on Thursday October 26, 2006 @09:36PM (#16603666)
    In fact, precident for this is well established. Way before digital media, people tried to get around copyright law by distributing films divided by a new intermission, films that had a minute here and there trimmed, films where some wide angle shots were re-edited for close ups, audio tapes with one song missing from a whole album, etc. and claiming these weren't violations. The last such arguements got shot dowm by about 1955. The 1978 Berne treaty on copyrights has specific clauses where they define civil violations as including "either all, or any substantial part of" the item, probably just to reinforce this principle. I'm not sure about what''s actually spelled out in the 1998 treaty, but it references Berne enough that the details probably don't really matter.
          Applying this would simply take a judge looking at these precedents and deciding that any part big enough to help another person get the whole work counted as a substantial part. With existing decisions against a group of infringers who duplicated each reel of a 10 real film in separate film labs in multiple countries, before shiping the reels individually into India, where they were finally put together, as precidents, that's likely to be a no-brainer for any half-way competent judge.
  • by LividBlivet (898817) on Thursday October 26, 2006 @09:48PM (#16603778)
    What the authors of the DMCA didn't realize is that you enforce copyright at your own peril in todays world.

    The RIAA pissed away a $10B+ opportunity by not blanket licensing the original Napster. Now they're on their last lap around the bowl. The MPAA will suffer a similar fate if they try and push their bought and paid for copyright nonsense too much further. Google knows exactly what its doing and exposing the absurdity of DMCA is a great first step.

    I think Jon Stewart/Stephen Colbert and the execs at Comedy Central are smart enough to realize that having short low quality clips of their shows is really free advertising and viral marketing. They get a larger audience, more exposure and sell more DVD's/whatever because YouTube exposes their product to many people who wouldn't otherwise have watched. Nobody is selling YouTube clips on DVD-R's at the flea market or on the street.

    In fact one of the most valuable services GooTube could offer us is a list of companies who, in their "piracy is theft, we lost $100B, the world is coming to an end, waaaaaaaaaaah" paranoia, actually send takedown notices.
    It would let us know who the clueless idiots (most of MPAA/RIAA) are.

    I would be very surprised if Comedy Central ever sends a takedown notice to YouTube. They strike me as a reasonable bunch. (Funny too.)
    The rest of the asshats can shoot themselves in the foot all they want as far as I'm concerned.

  • by dabraun (626287) on Thursday October 26, 2006 @10:24PM (#16604014)
    Because many (mostly TV shows) videos on YouTube are partial snippets at low quality it, in all likelihood, drives new viewers to programs. Despite the fact that the common belief here is that "content owners are completely oblivious" I think they actually realize this. When shows are posted in full, over and over, they are going to complain. When snippets of shows are posted they are basically ads and the content owners, in large part, probably LIKE this.

    The difference with the music sharing sites of old was the the content was, at the heyday, complete and good quality. For those willing to wade the waters and fix the metadata it completely replaced any interest in purchasing the material. In some cases it may have made people more aware of bands and resulted in album sales but, honestly, this was NOT how the majority of P2P users viewed the system.
  • Re:Yes (Score:3, Insightful)

    by Rakishi (759894) on Thursday October 26, 2006 @10:27PM (#16604046)
    Not quite. Society, at least a large portion of it, does not seem to consider it wrong to download copyrighted material illegally. Nor do we seem to consider it wrong to share copyrighted material with others. So therefore, they cannot consider it a good compromise to allow a limited monopoly. If We did, people wouldn't infringe, right?

    Your point, just because a lot of people have no qualms about stealing, murder or hard drug use with no restrictions doesn't mean that everyone does. If you only hear about 0.5% of events and all of them are about people doing X is doesn't mean that everyone does X.

    When the laws and Society have a parting of ways, it can be particularly painful, especially for those on the leading edge of change.

    What charge? Your delusions of grandeur while hilarious are but also a bit frightening. If society really wanted to abolish copyrights they could, most people either don't care or think it's a good system. Most of the rest are such poor bums that they need something to legitimize their own moral shortcomings other than their own lack of morals.
  • by ricree (969643) on Thursday October 26, 2006 @11:11PM (#16604202)
    Five different lawyers may give you five different answers, but in all five cases "Profit!" is what they're actually thinking.
  • by N Monkey (313423) on Friday October 27, 2006 @04:24AM (#16606218)
    Who the hell knows? Ask 5 lawyers and you'll get 5 different answers.
    They will, however, all agree that their advice just cost you a rather large sum of money....
  • by David Off (101038) on Friday October 27, 2006 @04:48AM (#16606312) Homepage
    Yeah, I've read through the DMCA and it looks like YouTube falls down on a few points. As a poster above says on these grounds someone you set up a:

    YouWarez.com

    site allowing people to share software charging for downloads and so long as it responds to take down notices it would be legal. Yeah right.

    As for the argument that "YouTube wouldn't work if it moderated uploads"... well boohoohoo, isn't it usually up to businesses to ensure they operate within the law.

    It seems pretty far fetched that YouTube is just some innocent "common carrier".
  • by lpq (583377) on Friday October 27, 2006 @01:22PM (#16611282) Homepage Journal
    Who the hell knows? Ask 5 lawyers and you'll get 5 different answers.


    That this is marked "funny" seems odd.
    It is the job of lawyers to come up with interpretations of the law that support their client. It is then the job to convince a judge or jury of the reality of this position by showing their interpretation, is, at the time, "correct".

    There is no absolute right or wrong answer. There is "one correct answer" to the previous poster's question. There is only that, which a lawyer can convince a court of, within the time constraints of the specific court, to be [a] "correct" interpretation of the law.

    "Lawyering" isn't about finding "right" or "wrong". It's about salesmanship.

    -l

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