Cuban v. EFF lawyer on YouTube, DMCA

hamtaro writes "Mark Cuban, owner of the Dallas Mavericks and outspoken activist on copyright issues, exchanged some words with an EFF lawyer at this year's EFF 'Pioneer Awards'. The awards, held earlier this week, saw a heated discussion ensue about YouTube. Apparently Cuban feels that 'everyone knows' that YouTube is host to tons of infringing content and therefore it should be exempt from DMCA protections. You read that right: the EFF, defending the DMCA against Mark Cuban. 'Cuban is an interesting spokesman for copyright concerns since he has a broad perspective; as the owner of HDNet, he worries about having his content given away for free without his consent, but he's also someone who has funded EFF campaigns in the past, especially when the group defended Grokster's claim to legality. One of the strangest aspects of the debate was seeing an EFF lawyer defend the DMCA, which usually comes in for a drubbing due to its anti-circumvention provision. But von Lohmann told Ars Technica after the debate that the safe harbor section has actually allowed plenty of businesses to flourish that might otherwise have been mired in legal problems, and that it has generally worked well.'"

Comments

bad analogy time!

[Animaether]

I'm a service provider... the service I provide is to make my hands do things (no, not that... you pervs).

A user comes along, and uses my hand to slap you in the face anytime somebody says "Hello".

Somebody comes along, says "Hello", and through the user's directive I slap you.

You tell me to cut it out and I say "Ok.", and the next time somebody says "Hello"...

I slap you again. You tell me to fqn cut it out already, like you told me last time. I say "Ok." again. Somebody comes along again, says "Hello"...

And I slap you again. Now you're thinking "whatthefuck mate? STOP IT!". I say "Ok.".. again. Somebody says "Hello"...

And once more, I slap you. Now you might be thinking "what gives?" and instead of telling me to stop it, you check into why I slapped you. And you realize that the first time I slapped you because User A told me to do so whenever somebody said "Hello". The second time it was User B. The third time it was User C. The fourth time it was User A again. And then you realize - no matter how often you tell me to stop slapping you in the face, somebody else will just tell me to do do it all over again anyway.

Bad analogies aside, that's what the provision is allowing YouTube. Yes, you can ask them to remove a video (actually, it's not as simple as an e-mail saying "Hi, I'm Viacom - that's our material, please remove." It involves legal paperwork and all that stuff costing a small amount of money (well, small to Viacom)). But that same video (bit-for-bit) may be re-uploaded and YouTube can wash its hands in innocence pointing to the provision and saying they complied completely.

I.e. they comply with the letter of the law(directive/thing/whatever), but I think we all know it's not quite within the spirit of it. Any more than people complying with GPLv2 using the code to build server-side applications/etc. and ticking off a bunch of people are complying with the letter of the GPLv2, but not the spirit. Hence (and for other readsons) GPLv3. Same reason why the DMCA should be revisited as well - and while they do so, they can get rid of the utterly bad parts (stuff about not being allowed to break decryption/etc.).

Re:Who cares if they host some infringing content

[cpt kangarooski]

No, he's pretty well on target. Let's remember that prior to the enactment of the 512 safeharbor, there were suits brought by copyright holders against ISPs for copyright infringement committed by the ISPs because they were hosting web sites on which infringing material had been put by users. The ISPs won some and lost some, and the uncertainty of the whole thing prompted them to lobby for the safeharbor lest they have to quit being ISPs due to the legal risk involved.

But in the cases where the ISPs won, they generally won on the argument that they provided a means for users to do things, but that they didn't police those means. The common analogy was that of a photocopier which was made available for the public to use without supervision; the courts didn't feel that it would be right to hold the owner responsible there, and thus, not to hold an ISP responsible in the ordinary case. Probably the leading case is Religious Technology Center v. Netcom.