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Usenet.com May Find Safe Harbor From RIAA lawsuit
Daneal writes "Ars Technica has some interesting analysis of the RIAA's lawsuit against Usenet.com. There's reason to believe that Usenet.com — and most other Usenet providers — could qualify for protection under the DMCA's Safe Harbor provision. 'The DMCA's Safe Harbor provision provides protection for ISPs from copyright infringement lawsuits as long as they take down offending material once they are served with a notice of infringement. "Whether the Safe Harbor applies is the central legal question that is going to be raised," EFF senior staff attorney Fred von Lohmann told Ars. An RIAA spokesperson tells Ars that the group has issued "many" takedown notices to Usenet.com, but von Lohmann says that the volume of takedown notices isn't what counts. "The DMCA's Safe Harbor makes it very clear," von Lohmann said. "The number of notices doesn't matter as long as you take the infringing content down."'"
Yes, those ads are part of the problem, because it hurts their Safe Harbor defense (see my post which quotes the section of the DMCA, further down in the thread). But only insofar as they might show that Usenet.com was benefiting directly from illegal content. And I'm not sure they do that, because the ads aren't that blatant. They basically just suggest that they have a rigorous privacy policy, etc. It's not totally damning.
Where I think they get into trouble is that, in order to claim Safe Harbor, they basically need to be able to claim "hey, somebody put that up onto our system, we didn't know it was infringing, we didn't even know it was there!" And it's a bit tough to do that with Usenet, seeing as how it's about 99% binaries and anyone who's ever opened up the alt.binaries.* hierarchy can tell that it's got a lot of bootlegs and warez in it.
It would be a little comical to see a whole bunch of seasoned network engineers and other greybeards try to claim that they had no idea there was copyrighted material on Usenet. ("Warez? On my Usenet?") But that's sort of the position they have to put themselves in, in order to get a successful 512(c) defense.
They also have to show that in the past they've complied with DMCA takedown orders against content that a copyright holder has pointed out as being infringing, which it seems like they weren't doing. That may also be a problem, although maybe they can argue that they didn't have the capability to delete articles (after all, if they took them out of their store, would they just have come in on a feed from another site that they peer with?). It might be difficult to get a judge to swallow that, though.
I think they're in trouble, but I'm not sure exactly how much trouble just yet.
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It would be a little comical to see a whole bunch of seasoned network engineers and other greybeards try to claim that they had no idea there was copyrighted material on Usenet. ("Warez? On my Usenet?") But that's sort of the position they have to put themselves in, in order to get a successful 512(c) defense.
Why is that a barrier to a successful 512(c) defense? If the host, Usenet.com in this case, services all take down notices in a reasonable and timely fashion and makes reasonable efforts to accommodate copyright holders (the court decides what is and is not reasonable) then have they not fulfilled their obligation under the law? How would they know if there was a copy of Eric Clapton's greatest hits on their network? Sure they could search for it if they wanted to but are they required to have automated agents searching all of the time for everything that might be copyrighted? Is that reasonable or even feasible? Certainly not, it is the responsibility of the copyright holder to locate infringement and take the legally required step of sending a take down notice. As long as there is a reasonable system in place to service requests from copyright holders, then the content host has fulfilled its obligations and should be able to take refuge in the safe harbor.
Am I mistaken?
Maybe i'm missing a point or two here. But it seems to me in order for anyone including the RIAA to define the content of Usenet they would have to decode the binary "and probably have to have a special reader for text" messages. UUencode YENC and MIME seem to be the major encoding types and seeing as the servers store purely code in an unidentifiable format there is no way they could actually SEE what is posted without downloading it and re-encoding it back to a compiled file. Movies/audio etc are all converted TO ascii and then back.
You cannot watch a stream coming into a usenet server and say it's an MP3 or MPEG or AVI If memory serves me. It's possible the subject line would be clear/plain text but more than that is encoding.
Correct me if I am wrong.. I've been using Usenet since 97 but it's been since like 98 since I investigated what made it work.
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