Case Against Video-Sharing Site Dismissed

NewYorkCountryLawyer writes "A California copyright infringement case brought by an adult video maker against a video sharing web site, Veoh Networks, has been thrown out, based upon the 'safe harbor' provision of the Digital Millennium Copyright Act ('DMCA'). In a 33-page decision (PDF), the Court concluded that Veoh was covered by the DMCA, and had carried out its duties to comply with takedown notices in a reasonable manner. The Court rejected the plaintiff's arguments showing possible ways that users could do an end-around, saying that the law requires 'reasonable' compliance, rather than perfection, and noted that the DMCA is 'designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age'."

Comments

YouTube & Viacom Responses

[eldavojohn]

I read this in Wired and found this quote from YouTube:

"It is great to see the Court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights," YouTube Chief Counsel Zahavah Levine said in a statement. "YouTube has gone above and beyond the law to protect content owners while empowering people to communicate and share their experiences online."

And this quote from Viacom:

"Even if the Veoh decision were to be considered by other courts, that case does nothing to change the fact that YouTube is a business built on infringement that has failed to take reasonable measures to respect the rights of creators and content owners. Google and YouTube have engaged in massive copyright infringement â" conduct that is not protected by any law, including the DMCA."

Probably not far from what one would expect either to say but I'm afraid this isn't going to do much for YouTube.

Re:YouTube & Viacom Responses

[NewYorkCountryLawyer]

I read this in Wired and found this quote from YouTube:

"It is great to see the Court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights," YouTube Chief Counsel Zahavah Levine said in a statement. "YouTube has gone above and beyond the law to protect content owners while empowering people to communicate and share their experiences online."

And this quote from Viacom:

"Even if the Veoh decision were to be considered by other courts, that case does nothing to change the fact that YouTube is a business built on infringement that has failed to take reasonable measures to respect the rights of creators and content owners. Google and YouTube have engaged in massive copyright infringement â" conduct that is not protected by any law, including the DMCA."

Probably not far from what one would expect either to say but I'm afraid this isn't going to do much for YouTube.

eldavojohn, with all due respect..... do you seriously think that just because they put out conflicting press releases that somehow nullifies the power of this decision as a judicial precedent? Do you really think the judge in Viacom v. Youtube cares about the press releases?

If so, I beg to differ. Not all the press releases in the world can deflect the clear and faultless reasoning exhibited by Judge Lloyd. We are having a sudden outbreak of sanity and respect for the plain meaning of statutes. This is so important. It is another nail in the coffin of the MPAA's frivolous suit against YouTube.

IMHO.

Re:YouTube & Viacom Responses

[eldavojohn]

eldavojohn, with all due respect..... do you seriously think that just because they put out conflicting press releases that somehow nullifies the power of this decision as a judicial precedent?

Ray Beckerman, with all due respect, that is not at all how I see it. I have just resigned myself to the fact that a court case with a billion dollars at stake will not be lost because a California judge knocked down an infringement case about ten pornographic videos that were immediately taken down anyhow. Lawyers do not say goodbye to a billion that easily!

You are the lawyer however! It would bring me great joy to hear otherwise but I would expect Viacom's lawyers to play the same card they played in their press release--attempting to convince the judge that there are too many differences between these cases to consider Io Vs Veoh to be precedence.

It is another nail in the coffin of the MPAA's frivolous suit against YouTube.

The MPAA has a suit against YouTube? What is it? All I know of is Viacom's suit and, though a member, they are not every single Movie Picture Association of America Member.

Also, I think the 'nail in the coffin' phrase is being used to soon here. The cases I've been following seem to point to the entire US Justice System being in **AA's pet attack dog in witch trials. While there's been a few cases of common sense, the vast majority of cases are being settled out of court because the judge is a corporate pawn and insolent technology-wise.

Re:YouTube & Viacom Responses

[Anonymous Coward]

Not all the press releases in the world can deflect the clear and faultless reasoning exhibited by Judge Lloyd.

I have a sudden urge to change my password from "Lloyd is pants" to "Lloyd is awesome".

Re:YouTube & Viacom Responses

[NewYorkCountryLawyer]

eldavojohn, with all due respect..... do you seriously think that just because they put out conflicting press releases that somehow nullifies the power of this decision as a judicial precedent?

Ray Beckerman, with all due respect, that is not at all how I see it. I have just resigned myself to the fact that a court case with a billion dollars at stake will not be lost because a California judge knocked down an infringement case about ten pornographic videos that were immediately taken down anyhow. Lawyers do not say goodbye to a billion that easily!

Of course that is not why the YouTube case will be lost. The YouTube case will be lost because the California judge was right.

You are the lawyer however! It would bring me great joy to hear otherwise but I would expect Viacom's lawyers to play the same card they played in their press release--attempting to convince the judge that there are too many differences between these cases to consider Io Vs Veoh to be precedence.

Thing is, they can say anything they want to in a press release. In court, though, it's not so easy. If you make factual claims that aren't so, you will get burned. And if you make legal arguments that aren't supportable, you will get burned. Unfortunately, all Viacom has to work with is factual claims that aren't so, and legal arguments that aren't supportable. The end result of the YouTube case, if it is not settled, will be a multimillion dollar attorneys fee award against the plaintiffs.

It is another nail in the coffin of the MPAA's frivolous suit against YouTube.

The MPAA has a suit against YouTube? What is it? All I know of is Viacom's suit and, though a member, they are not every single Movie Picture Association of America Member.

You are right, I stand corrected. I had remembered it as being a gang of plaintiffs, but actually it was just a few.

Also, I think the 'nail in the coffin' phrase is being used to soon here. The cases I've been following seem to point to the entire US Justice System being in **AA's pet attack dog in witch trials. While there's been a few cases of common sense, the vast majority of cases are being settled out of court because the judge is a corporate pawn and insolent technology-wise.

Well point me to some monstrous decision, of recent vintage, supporting your thesis (and in doing so please confine yourself to cases where the defendant could afford a lawyer).

Re:YouTube & Viacom Responses

[eldavojohn]

Of course that is not why the YouTube case will be lost. The YouTube case will be lost because the California judge was right.

The difference between what is morally right and what is financially backed to be right has slowly become irrelevant for my country's justice system. Do I sound Jaded? Do I sound a bit like Philip Nolan in my disgust for our "justice department?" From shill trials and hearings against big oil/tobacco to using political or ideological criteria to hire new lawyers into the department, it's a bright shining example for my country's ebbing greatness.

These days, the few court cases that seem to make sense come from the lowest courts in the country. The highest courts are too busy licking the soles of some lobbyist's shoes or siding with a political party to do their jobs.

YouTube maybe morally correct but Viacom is monetarily correct--make no mistake about that. A thousand lawyers will find a way.

Thing is, they can say anything they want to in a press release. In court, though, it's not so easy. If you make factual claims that aren't so, you will get burned.

That's strange, wasn't it you who showed us that judges were taking advice from 'expert' witnesses about IP addresses in Kazaa and using those logs to find defendants guilty? Screenshots and text files that would take me five minutes to doctor cost citizens $20,000 to avoid the legal battle! And those are 'factual claims!?'

Viacom will convince the judge that YouTube is creating revenue for Google using content that isn't licensed. And they won't have a hard time convincing a judge that doesn't understand the technology behind it ... nor will the judge need to know how ad supported revenue works. Viacom will point to services like NBC.com or ABC.com or maybe even Hulu on how ad supported licensed content should work and it's going to take one example of a full episode of SouthPark on YouTube to make the judge agree.

Well point me to some monstrous decision, of recent vintage, supporting your thesis (and in doing so please confine yourself to cases where the defendant could afford a lawyer).

You're right that there hasn't been a lot where the defendant could afford a lawyer but I've already flogged the issue of money making someone right into the ground.

I'm not attacking you here. I'm not attacking YouTube here. Hell, I'm not even really attacking Viacom. I'm criticizing our Justice Department in several regards. Don't take this personally!

Re:YouTube & Viacom Responses

[Hatta]

If so, I beg to differ. Not all the press releases in the world can deflect the clear and faultless reasoning exhibited by Judge Lloyd. We are having a sudden outbreak of sanity and respect for the plain meaning of statutes. This is so important. It is another nail in the coffin of the MPAA's frivolous suit against YouTube.

Until the next Congress rewrites the law in favor of big media yet again.

Re:YouTube & Viacom Responses

[gorckat]

While there's been a few cases of common sense, the vast majority of cases are being settled out of court because the judge is a corporate pawn and insolent technology-wise.

I always thought members of a lawsuit were advised to not make public statements like that.

Re:YouTube & Viacom Responses

[NewYorkCountryLawyer]

I'm not attacking you here. I'm not attacking YouTube here. Hell, I'm not even really attacking Viacom. I'm criticizing our Justice Department in several regards. Don't take this personally!

I didn't. And I know you didn't take my disagreement with you personally either. I'm a big fan of yours. I just love a good argument.

I don't mean to say our justice system is perfect. Far from it, I've recently been quite critical of the way the RIAA cases are being handled, and made 15 specific suggestions on how the federal judiciary could improve its track record and provide a more level playing field. But I will tell you that in the big cases -- where the party litigating with the content-maniacs is a corporation which has the resources to get good lawyering -- the results have not been so terrible. And even in the RIAA cases, where the defendants are invariably overmatched, the judges are starting to wake up to the fraud that has been perpetrated on them.

By the way, if you think Io v. Veoh didn't worry Viacom, why do you think they requested permission to submit an amicus curiae brief in support of Io? The judge denied their request (PDF), but no doubt read the brief and heard everything Viacom, and its lawyers, had to say. I don't think he was impressed.

Viacom can say whatever it wants to say in its press releases. But I don't think Judge Stanton will be even remotely impressed. He will want to know why they tied up his docket, when they had nothing.

Re:YouTube & Viacom Responses

[homer_s]

where the party litigating with the content-maniacs is a corporation which has the resources to get good lawyering

That, precisely, is the problem many see with the legal system. You may not agree that that is a problem, but then, I see you as part of the system.

..the judges are starting to wake up to the fraud that has been perpetrated on them.

Anyone with a little bit of technical knowledge knew what these cases were full of BS when they started. Yet, it took the legal system how many months to understand that? And how many lives were ruined because the judiciary did not make sure that the judges had some subject knowledge before they were assigned these cases?

Part of the problem is the way society looks at judges. Instead of seeing them as a normal service provider - like a plumber or doctor - they are seen as super-humans. Wonder how many judges are reprimanded for poor performance.

Re:YouTube & Viacom Responses

[NewYorkCountryLawyer]

where the party litigating with the content-maniacs is a corporation which has the resources to get good lawyering

That, precisely, is the problem many see with the legal system.

I agree wholeheartedly that that is one of the major problems with the legal system. And many judges agree with that, too. Which is why the Judicial Section of the American Bar Association published an issue of its quarterly magazine devoted solely to the problem of providing "equal access to justice", why they invited me to write an article on the problem with "unequal" access to justice in the RIAA litigations, and why I spent many many hours writing that article.

That is why You may not agree that that is a problem

I can't for the life of me see how you could accuse me of that

but then, I see you as part of the system.

Well obviously I am part of the system, albeit a powerless part. I don't know why you want to disparage me over it. I do the best I can.

..the judges are starting to wake up to the fraud that has been perpetrated on them.

Anyone with a little bit of technical knowledge knew what these cases were full of BS when they started.

Agreed.

Yet, it took the legal system how many months to understand that?

Years. Not months. Years.

And how many lives were ruined because the judiciary did not make sure that the judges had some subject knowledge before they were assigned these cases?

Many, many lives were ruined. And when, in May 2006, I stood up to a judge who had no understanding whatsoever of anything that was in issue, and told him that 'lives are being ruined' by these cases, he said that because I had said that, he wouldn't believe anything else I could say.

Re:YouTube & Viacom Responses

[homer_s]

Well, I must've misunderstood your positions then - my apologies.

Re:YouTube & Viacom Responses

[NewYorkCountryLawyer]

No problem, homer_s.

I fully agree with you that the courts need to watch out for those cases where one side has all the money in the world to burn on litigating, and the other side doesn't have any. I was just saying to eldavojohn that Viacom v. YouTube isn't one of them. Google has all the money it needs to defend itself. And Viacom is going to get..... buried.

Re:YouTube & Viacom Responses

[homer_s]

I guess my broader point was that, the way the courts are setup (not just in the USA), people with money to spend will always have the upper hand over people with little money or time to spend. There is no law or regulation that can change that. The problem is inherent to the system.

We just had to settle with a large credit card company about a patent that (we believe) does not apply to us at all. But, just to contest that in court will take about a million dollars - money that we just don't have and money that Ame..oops, the credit card company, can easily afford.

Most of the cost comes about because lawyers and judges have an incentive to make things more complex. There is no incentive for the court system to make things simpler so a normal person can litigate.
A good example of this is the laws against regular people practising law.

Re:YouTube & Viacom Responses

[NewYorkCountryLawyer]

Most of the cost comes about because lawyers and judges have an incentive to make things more complex. There is no incentive for the court system to make things simpler so a normal person can litigate. A good example of this is the laws against regular people practising law.

There is no law against people representing themselves in court.

As to non-lawyers representing other people...... well I don't think you'd want me taking your appendix out. The risk of mortality would go way up.

Re:YouTube & Viacom Responses

[homer_s]

As to non-lawyers representing other people...... well I don't think you'd want me taking your appendix out. The risk of mortality would go way up.

If that is truly the reason, then that would be true only in cases where there is a threat of death, correct? There wouldn't be any problem with me representing my friend in a divorce or immigration case - is that correct?

Come on now, we both know why that law is on the books.

Re:YouTube & Viacom Responses

[Anonymous Coward]

And when, in May 2006, I stood up to a judge who had no understanding whatsoever of anything that was in issue, and told him that 'lives are being ruined' by these cases [blogspot.com], he said that because I had said that, he wouldn't believe anything else I could say

To be extremely charitable to the judge in question, the way I read this ("The judge also indicated that he was disinclined to believe anything I would say because I had said that the RIAA's lawsuits 'wreck people's lives'. I do not think that was an appropriate approach for a judge to take, especially on such important issues") is that somewhere inside the judge's brain there was a realization that for your statement to be true the separation between private and public law must have broken down to the detriment of natural justice. That is, your accusation is tantamount to saying that these lawsuits themselves have brought the system of justice into disrepute. Since the system of justice is still reasonably well regarded, this amounts to an almost contemptuous remark, and rather than pursue that line further, he just developed the sort of transient deafness that judges develop when you wear a tie that is just a little too loud for their court. Only his deafness was more extraverted than usual.

In my bar your comment, if made outside the court, would get you invited around to stale coffee no sugar with some senior litigating attorneys at the Law Society. Drink up. Don't do it again. If made inside the court, you'd pay for the coffee, and be expected to express some remorse for any possible critcism of the court, the court system (of which you are a part), and particularly of the judge's exercise of his office.

That said, a judge's personal character is totally, utterly fair game. If he is a baby buggering bastard who eats nothing but suet, you may say so, just don't infer that he is in anyway inclined to act impartially or unconstitutionally on the bench. Unless you really prefer journalism to being at the bar, of course.

Finally, I agree with you that the ruination of lives is obviously a desired goal of several large copyright owners, and that they are abusing a tool (statutory damages) meant for improving the efficiency of the private law part of the justice system with respect to making whole a party who is injured in small ways many times over. Statutory damages should not be used as exemplary damages, and it is disgraceful that this has not been made very clear in civil court or by superior courts inclined to offer opinions about the constitutionality of the imposition of what amounts to fines without the benefit of the higher burden of proof in the public law courts, where fines and deterrents are normal.

Re:YouTube & Viacom Responses

[NewYorkCountryLawyer]

You're a pretty complicated person. I'm not, I'm a simple man.

Every day I speak to people whose lives are being wrecked by these lawsuits.

I was just telling it like it is.

Re:YouTube & Viacom Responses

[Anonymous Coward]

Fair enough. I also agree with you. However, I think there is a pretty clear line between criticizing the detrimental effects of these lawsuits (or indeed pointing out real weaknesses in the civil justice system) and effectively suggesting to a judge in his own court that he is personally bringing the system of justice into disrepute. No private law judge likes to be told that he is wrecking lives rather than making injured parties whole, or achieving equity, especially if he is not given a way to feel less constrained by statute and less confronted by an apparent injury.

Crossing that line should lead to sanctions. Judicial deafness is a sanction. Unfortunately it mainly affects the party you are acting for, rather than you.

You may be simple, but you are very smart, and are good at reflection. I'm only offering this reading of the situation as described in hopes of improving your overall effectiveness, which has, frankly, been awesome.

There are good legal arguments to be made about the fundamental unfairness of statutory damages claims in these cases. "You are likely to be duped into wrecking lives" is not really one of them.

Finally, I am in favor of criticism of the justice system and how it is subverted by bad actors. You do that very well, and need no advice from me on how you blog and otherwise get yourself into the public eye. Good work!

Re:YouTube & Viacom Responses

[NewYorkCountryLawyer]

Well thanks for the advice. And for the kind words.

I don't think I was attacking the justice system in Judge Owen's courtroom. I was saying that the pendency of a federal litigation against a poor or working class person can have the effect of wrecking his or her life, and that it should therefore be based upon a sound pre-litigation investigation. Which, as you are well aware, the RIAA cases are not.

As to where and by whom I get invited for coffee, and how good the coffee is.... I think you know I don't care about such things.

so...

[N!k0N]

it's OK to share pr0n, but not last week's episode of Southpark?

I KNEW the lifeblood of the internet was pr0n!

Re:so...

[77Punker]

Actually, if you look at sites like puretna.com they have a list of video publishers whose videos you are not allowed to upload. I presume this is because they have been asked not to publish those torrents.

It just looks to me like the porn folks aren't quite as sue-happy.

Re:so...

[dave562]

And they offset their losses with malware distribution and identity theft from compromised computers. ;)

Re:so...

[77Punker]

I don't think they've been the victim of any lawsuits (yet). They appear to keep the site afloat by some gigantic banner ads. The site actually looks very good with adblock, otherwise it gets to be a little harder to read.

Re:so...

[Anonymous Coward]

Even at the risk of sounding like someone talking out of his ass, I'm going to say that porn, unlike more thought-involving entertainment/art, has AFAIK been actually proved to be much more of a "single-use" product. People usually won't fap to the same stuff over and over again, but come for more, new material. Something to do with human brain and sexuality etc. Fapping to porn also carries a certain amount of addiction-inductiveness. Because of these things, porn producers don't usually go too overboard when squashing the sites sharing "the goods" because they know that even if only something like 1 % of free-riders turn to paysites to get more/better service, they will rake in big fat cash.

That, and they may like to attract as little attention from politicians as possible, for certain reasons.

Sweet!

[Quasar1999]

From what I read in the summary, I assume this means free porn for all? Right???

Re:Sweet!

[jollyreaper]

From what I read in the summary, I assume this means free porn for all? Right???

Is that free as in "beer" or free as in "love?"

Re:Sweet!

[nickswitzer]

From what I read in the summary, I assume this means free porn for all? Right???

Isn't that was Google Images is when you turn of Moderate Safe Search?

Sweet

[Anonymous Coward]

According to this I'm justified in downloading all the movies I want! No one can stop me now!

Youtube wins!

[bogaboga]

With this decision, sites like Youtube win. I can now upload all those NBC, ABC, CBS clips on my PC. That's sweet.

I like how they can skirt the laws

[jollyreaper]

One thing I never understood, why is prostitution (paying someone to have sex with you) illegal but making pornography (paying someone to have sex with you or another person in front of a camera) is legal? Would a John be able to beat a pandering rap by waving a camera and saying he was planning on filming the act and putting it on the internet? I like Carlin's thinking on the matter. "Selling's legal, fucking's legal, why isn't selling fucking legal?" Only in Vegas.

Re:I like how they can skirt the laws

[garett_spencley]

I'm not an expert but I do have a few points that might help you out.

1) Prostitution laws vary greatly from one area to another. Even municipally. For example, my city issues escort licenses to effectively legalize prostitution and to "help protect the safety of sex workers" but street walking (the ones you see on tv where coked out whores are going up to cars) are still illegal. In some places it's ok to advertise but not to solicit directly. In other areas prostitution itself is legal but advertising it is not etc. So it's not as simple as "prostitution is illegal". It depends on the area and there are varying degrees of legality. The Wikipedia article on prostitution has lots more info.

2) Pornography is considered an artistic expression and the US constitution and Canadian charter among other bill of rights in other countries protect free speech. In the 70's there were supreme court cases in the US that helped set precedent protecting pornography under the federal-granted right to free speech.

Re:I like how they can skirt the laws

[claytonjr]

One thing I never understood, why is prostitution (paying someone to have sex with you) illegal but making pornography (paying someone to have sex with you or another person in front of a camera) is legal? Would a John be able to beat a pandering rap by waving a camera and saying he was planning on filming the act and putting it on the internet? I like Carlin's thinking on the matter. "Selling's legal, fucking's legal, why isn't selling fucking legal?" Only in Vegas.

They are paid as actors, not as prostitutes. The sex is considered consensual.

Re:I like how they can skirt the laws

[Krinsath]

I believe the loophole here is that there's a story (albeit a terrible, perfunctory one usually) and the sex is part of the this story. So they are not being paid "just" to have sex...they're acting and are being paid to be actors. Since restricting filmmakers from recording graphic sex in the course of a story is considered an infringement of free speech, that's why what appears to be plain old prostitution is legal.

What I've always wondered is why prostitutes didn't set up a similar model. Obtain a business license to sell some sort of product like...I don't know...yarn. Have a certain price on the yarn like $300 and collect the appropriate taxes and what not on the yarn...after all, you're free to charge whatever you want for your products. After you sell an actual good, then have sex with the purchaser. They aren't paying you for sex, they bought item X and incidental to that purchase you decided to have sex with them. Much like the actresses in porn movies are not being paid to have sex, they're having sex incidental to their role as a character in a sexually-themed story.

It'd be an interesting tactic, but meh...probably too much work for the average working girl I suppose. Easier to do it on the side and hope you don't get caught I guess.

Re:I like how they can skirt the laws

[ais523]

Allegedly a similar tactic used to be used by companies in the UK to sell goods on a Sunday (back when that was still illegal, which is way before I was born); they would sell perishable goods like fruit (which could be legally sold on a Sunday) for a lot more than its real price, and throw in whatever product they actually wanted to sell free.

Re:I like how they can skirt the laws

[Kingrames]

Paying for sex is illegal because it's accepted that using money to get sex is wrong. in much the same sense that using money to get votes is wrong (like that works) or declaring that using money to get people to do things like change a report to be more favorable to you is wrong.

If you're caught bribing a news reporter, both of you could be fired, and you'd face legal action, even though it's perfectly legal for the news reporter to like you and paint you in a positive light. (though unprofessional)

Re:I like how they can skirt the laws

[Anonymous Coward]

Its probably due to the bible or some other stupid outdated law about morality. Of course they'll say its to prevent exploitation, protect children or because it funds other criminal activities.

Re:I like how they can skirt the laws

[Rob Kaper]

"Selling's legal, fucking's legal, why isn't selling fucking legal?" Only in Vegas.

And other countries, of course.

But even though it's not new, your point can't be stressed often enough. I also really don't understand how worker unions and health care for legal hookers is so much worse than drug-addicted underage kids getting pounded at trucker stops.

And I don't understand why I can fuck the shit out of a 16 year old in any way she conscents to, legally, yet a topless picture of her might get me in trouble for possesion of child porn.

(YMMV.)

Re:I like how they can skirt the laws

[MozeeToby]

And I don't understand why I can fuck the shit out of a 16 year old in any way she conscents to, legally.

Please note, this highly dependent upon where you live. In Wisconsin, for instance, having sex with a 16 year old is a felony. Having sex with a 17 year old is still a misdemeaner.

Of course, if I understand things correctly that is exactly where the contradiction comes from. The age of consent is a subject of law that is determined largely on a state by state basis where as child pornography is enforced at the federal level. The US government has decided that 18 is the age of consent, where as you state has decided 16 is.

Incedently, I would argue that having your picture taken and potentially spread around the internet would be much more damaging to a 16 year old than having conscentual sex with your partner. If the proper percausions are taken, having consentual sex has few long term repercussions. Having pictures or movies potentially distributed to your friends, family, future employer could be permanantly damaging.

Re:I like how they can skirt the laws

[m.ducharme]

"Buy this basket of fruit for 500 pounds, and we'll throw in this computer for free!" I wonder if it sounded as ridiculous then as it does now?

Re:I like how they can skirt the laws

[MarkvW]

A person could open a storefront and call it "Sex Movie Production, Incorporated (SMPI)." SMPI would furnish everything except the star. The star, let's call him "John," would come in off the street to make a movie. SMPI would furnish "John" everything for $50.00: (a) a set (consisting of a cheap videocamera, a tripod, and a bed); (b) a videocassette; and (c) a co-star. "John" and his co-star would then act together.

COME ON NOW!

  . . . Just because the porno people are doing it doesn't necessarily mean that its legal!

Re:I like how they can skirt the laws

[Anonymous Coward]

Real reason guys...

Its a free speech issue.

When you pay someone for sex, its sex. When you pay two "actors" to make a movie of sex, you are making speech--constitutionally speaking, protected speech.

See People v. Freeman and its progeny.
 

Re:I like how they can skirt the laws

[rgviza]

Aren't most hookers great actors? Since both agree to have sex isn't it consensual?
Can't you pay the hooker for her acting skill when performing the act and not the act itself? /confused

Re:I like how they can skirt the laws

[HadouKen24]

Here in Oklahoma, things like palm reading and tarot reading are still illegal to do for money--despite similar provisions having been knocked down as unconstitutional in other states. It's not strongly enforced, but if you keep your ear to the ground, you'll hear about an arrest every couple of years. Fortune tellers get around the law by just that strategy--selling gaudy trinkets and providing readings as an incidental bonus.

Tattoo parlors used to do the same kinds of things until they were fully legalized a couple of years ago.

These kinds of workarounds are only effective when the police and judiciary don't care too much, though. It's just a waste of their time to go rounding up fortune tellers, and it makes them look bad. Rounding up prostitutes, however, is something that they're expected to do, and such tactics aren't guaranteed to pass judicial muster.

Re:I like how they can skirt the laws

[Rob Kaper]

My state is in a different union than the American. I suppose it can be confusing I used mileage and not something metric. ;-)

You make a point I hadn't considered yet, although I'd like to add that most of these laws predate significant use of the Internet (or even photography itself, but I'd have to verify that). And in (nation) states where abortion is still illegal consensual sex could also cause permanent damage. And that mere possession alone isn't damaging and therefore should not be illegal, especially not in a consenting case.

Anyway, the whole problem is that age is completely arbitrary, period. I know quite a few people my age (31) who I don't think will ever reach the maturity, rationality and awareness of some of my teenaged friends.

Some years ago I got a call from a fourteen year old friend who had just fought of an ex-boyfriend because she refused to have unprotected sex and then telling you "I'm going to stay away from dodgy folk like him". Quite an eye-opener when that same week you learn of another STD someone your own age contracted.

I've been trying to fight ageism ever since.

Re:I like how they can skirt the laws

[garett_spencley]

"Second, pr0n teaches nothing about how to maintain a relationship. Zero, nada, zip. The physical aspect glorified by pr0n is not even 1% of what you need to know about maintaining a relationship."

So ?

I didn't realize that it was supposed to.

"Not to mention that it encourages immoral behavior like adultery, whoremongery, and fornication. Yes there is scripture that discourages pr0n, but I am refraining from using the search while at work."

Just curious: do you align yourself with the camp that feels that violent video games and movies should be outlawed because they (in a certain few's opinions) "encourage immoral behaviour" as well ?

Oh and the scripture you're referring to is Mathew 19:9

"And I say unto you, Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery: and whoso marrieth her which is put away doth commit adultery."

Re:I like how they can skirt the laws

[Anonymous Coward]

"What's a computer??"

Re:I like how they can skirt the laws

[brainnolo]

Second, pr0n teaches nothing about how to maintain a relationship.

Actually that's not the point of pr0n.

Re:I like how they can skirt the laws

[garett_spencley]

Hate to reply to myself but I need to make a correction. I thought the GP said "scripture against adultery" when he/she really said "discouraging pr0n".

In that case he/she is probably referring to Mathew 5:28

"but I say unto you, That whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart."

Re:I like how they can skirt the laws

[Hatta]

Paying for sex is illegal because it's accepted that using money to get sex is wrong.

First, why would using money to get sex be wrong? Your analogies are silly, buying votes harms the entire electorate. Buying sex harms no one who doesn't consent.

Second, show me a guy who hasn't used money to get sex and I'll show you a virgin.

Re:I like how they can skirt the laws

[AnalogDiehard]

Just curious: do you align yourself with the camp that feels that violent video games and movies should be outlawed because they (in a certain few's opinions) "encourage immoral behaviour" as well ?

Thank you for that gross misjudgement.

To answer that, no I do not agree with outlawing movies. That's why we have the MPAA rating system. I do not agree with outlawing violent games but we badly need a ratings system for them.

Anybody who denies that violent behavior directly affects society has forgotten the Beavis and Butthead episode - never re-aired and quietly swept under the rug - that inspired a child viewer to set his trailer afire and his family lost an infant daughter in the fire. And that's just one media "entertainment" that has been quietly swept under the rug, there are more.

Re:I like how they can skirt the laws

[Eil]

There might be a flaw in your plan, though.

What happens when grandma walks in and just wants to buy yarn?

Re:I like how they can skirt the laws

[himurabattousai]

Fornication is highly discouraged in Holy Scripture [blueletterbible.org]. It says don't do it, period. After all the fallout from the "sex revolution", the wisdom of this scripture is too true.

Holy Scripture also has a great number of conflicting passages, so many to the point where living one's life by the exact letter of the Scriptures is impossible. The Scriptures also tend not to take into account that people are, by nature, sexual beings.

Second, pr0n teaches nothing about how to maintain a relationship. Zero, nada, zip. The physical aspect glorified by pr0n is not even 1% of what you need to know about maintaining a relationship. Not to mention that it encourages immoral behavior like adultery, whoremongery, and fornication. Yes there is scripture that discourages pr0n, but I am refraining from using the search while at work.

Westerns teach us nothing about how life in 1800's Arizona really was. Does that make them any less valid as entertainment? Does that mean that they should be banned? Art, whether or not you recognize its validity, does not need you to justify its existence.

Re:I like how they can skirt the laws

[Anonymous Coward]

What are you 17 years old? It's clear you know nothing about sex or maintaining a relationship. Anyway, fortification is a subset of sex. There's no gray area. You'd think a literalistic bible thumper would know how to use a dictionary.

Re:I like how they can skirt the laws

[Anonymous Coward]

It's illegal in Las Vegas.

See NRS 201.354 and http://www.las-vegas-criminal-defense.com/solicitation.html

Vegas isn't as sinful as one would think.

Re:I like how they can skirt the laws

[Anonymous Coward]

I'd rather go to Hell with cool open minded folks than to heaven to have to coexist with bigots like you!

Re:I like how they can skirt the laws

[nsayer]

Only in certain counties in Nevada, none of which includes Vegas

There. Fixed that for you.

Re:I like how they can skirt the laws

[Anonymous Coward]

Massage parlors try to set up deals like this every once in a while.

They still get busted for prostitution.

Captcha- gratuity

Re:I like how they can skirt the laws

[Maestro485]

...protecting pornography under the federal-granted right to free speech.

Of course, it's awfully hard to speak when you've got a.... never mind.

Re:I like how they can skirt the laws

[Shadow-isoHunt]

2) Pornography is considered an artistic expression and the US constitution and Canadian charter among other bill of rights in other countries protect free speech. In the 70's there were supreme court cases in the US that helped set precedent protecting pornography under the federal-granted right to free speech.

Stop right there. The constitution does not grant any rights, it protects them. The difference is huge, especially when it comes to bill of rights issues.

Re:I like how they can skirt the laws

[Lloyd_Bryant]

2) Pornography is considered an artistic expression and the US constitution and Canadian charter among other bill of rights in other countries protect free speech. In the 70's there were supreme court cases in the US that helped set precedent protecting pornography under the federal-granted right to free speech.

Which, if taken to it's logical conclusion, would mean that prostitution itself is protected. After all, what is prostitution, if not "performance art"?

Re:I like how they can skirt the laws

[Anonymous Coward]

A funny example of this was in some states of Australia. The selling of booze on Sunday was illegal. But there was an exception for travellers for some reason. So retailers would put a big map up on the wall with a 50 (?) mile radius circle on it and ask the customer "Where did you come from today?"

Re:I like how they can skirt the laws

[jabernathy]

Strange, Then can somebody rob a bank with a video camera and call it a documentary? What is the distinction between prostitution and getting paid to act out having sex?

Re:I like how they can skirt the laws

[Anonymous Coward]

And that, my friend, happens if you value free speech above everything else.

Re:I like how they can skirt the laws

[HTH NE1]

What is the distinction between prostitution and getting paid to act out having sex?

Paperwork. Specifically, enough documentation on the "performers" to prove their identities and legal ages, possibly to a level of detail a john wouldn't feel comfortable with sharing with a pimp (as producer), let alone a permanent visual record.

Re:I like how they can skirt the laws

[Anonymous Coward]

Excellent reply, except for the last line: "In the 70's there were supreme court cases in the US that helped set precedent protecting pornography under the federal-granted right to free speech."

Your rights are inherent, they are not granted by any government, only protected, or limited.

Re:I like how they can skirt the laws

[HTH NE1]

First off, it is not "sex" it is "fornication".

And it's not a baby, it's an unauthorized derivative work and double copyright infringement.

Re:I like how they can skirt the laws

[LrdDimwit]

In fact, a number of producers were successfully prosecuted for exactly this. They sued, it went all the way to the Supreme Court, and the Supreme Court said "we already ruled this is legal. It is well settled law that the government cannot use otherwise-perfectly-legal means to accomplish an unconstitutional objective."

Put another way: it is illegal to discriminate on the basis of race. Suppose a riot broke out, and the government arrested only the black rioters. Should that be legal? No. Since selling [prawn]* is legal, enforcing antiprostitution laws only on the [prawn]ographers suffers from essentially the same problem.

* -- silly net filter

Re:I like how they can skirt the laws

[Krinsath]

Additionally, having sex is not a crime and is indeed method by which we all arrived here. There are specific circumstances where having sex might be a crime (rape, age, "diminished capacity", etc.), but the act in and of itself is not. Robbing a bank, however, is more or less always illegal. I'm not sure there's ever circumstances that it's allowed.

So another key difference is that one is by default legal, and the other is by default illegal. You can of course make a movie about a bank robbery, but it better not be a real bank.

Re:I like how they can skirt the laws

[Anonymous Coward]

Apples can be pretty expensive...

Re:I like how they can skirt the laws

[HTH NE1]

You can of course make a movie about a bank robbery, but it better not be a real bank.

No kidding.

Of course, if you want to make a movie about making a movie about a bank robbery where in the movie the making of the movie about a robbery is in fact a cover for robbing the bank... well, that's been done.

Or was it that the cast in the movie in the movie had been secretly replaced with real bank robbers? (I.e. the actors in the movie playing real bank robbers in the movie in the movie instead of actors playing as actors playing as bank robbers.) It gets confusing.

I believe if I could just think of the name of that trope, I'd be able to track down the movie via Wikipedia.

Different results

[Exanon]

I am sorry to be so cynical as to suggest that if the claim had been brought by the MPAA, the result would have been different.

Contradictory laws

[suck_burners_rice]

The DMCA should be repealed and replaced with a law that compels people to make illegal copies of copyrighted material. This way, if you obey this law, you'll be infringing on copyright. If you don't obey this law, you'll be breaking the law. Then, the government can selectively enforce one, the other, or neither, depending on who is friends with whom and deliberately messing with those who look at a government official or copyright holder the wrong way. Mutually contradictory laws are the only way to go in the new millenium, especially as our physicists learn the ins and outs of M-theory.

Re:Contradictory laws

[Rob Kaper]

Or we just remember our inalienable right to overthrow out-of-control governments when diplomacy and democracy fail to do so and no longer seem to be capable of doing so anytime soon.

(Don't worry Mr. Fed, I'm presently only entitled to overthrow the Dutch government and so far I can tolerate their share of gross incompetence.)

Re:Contradictory laws

[Anonymous Coward]

The Dutch avoid overthrow by making marijuana legal.

Who'd want to overthrow a government with allows you to smoke weed?!

And even if you did, after enough weed, you'd only want to get up from the couch to get another bag of chips, overthrowing a government would be the last thing on your mind.

(now with meth, that would be a different story!)

Re:Contradictory laws

[nsayer]

a law that compels people to make illegal copies

...

Re:Contradictory laws

[Jedi Alec]

(Don't worry Mr. Fed, I'm presently only entitled to overthrow the Dutch government and so far I can tolerate their share of gross incompetence.)

Hey, at least we have more than 2 parties to pick from. Too bad so many people pick the wrong ones though... ;-)

WWW already provides free porn for all..

[Callaway]

WWW already provides free porn for all. Before that, there was usenet. Before that...?

Re:WWW already provides free porn for all..

[Lando242]

Before that people went outside and got girlfriends.

Re:WWW already provides free porn for all..

[compro01]

And then traded photographs of them.

DMCA take down provision doesn't get enough credit

[j0nb0y]

The DMCA take down provision doesn't get enough credit on /.

While I'm no fan of the DMCA on the whole, I actually like the takedown provisions. They provide valuable protection for ISPs.

My only problem with the provision is that in practice, it has been widely abused. The law itself provides a remedy against abuse. Those abusing the law can be charged with perjury. Unfortunately, no one has ever been charged with perjury for false take down notices, so the abuse continues. It would only take a few perjury charges a year to keep everyone honest...

What?

[arizwebfoot]

You mean there is actually one judge in the entire judicial system who knows where the "any" key is?

Why the difference between copyright enforcement?

[Anonymous Coward]

So I don't get why copyright enforcement, even under the DMCA is handled differently depending on the property being protected.

If that had been a movie, a song or a video game, someone would be getting serious fines, with no take-down notice involved. If the porn was disseminated via a torrent, likely the same thing (no take down request, just court and fines).

Why is there a difference? Does this reduce the likelyhood that copyright holders will give take-down notices, and go straight to court? Are copyright holders required to give a take-down notice?

This should help Google vs Viacom?

[dclozier]

One would think that this builds up Google's defense against Viacom. I hope Google doesn't back down or cut a deal with Viacom. This case is proof they are in the right.

Re:This should help Google vs Viacom?

[NewYorkCountryLawyer]

One would think that this builds up Google's defense against Viacom. I hope Google doesn't back down or cut a deal with Viacom. This case is proof they are in the right.

I agree. YouTube is clearly entitled to the "safe harbor" afforded by the DMCA, and the Viacom case should be thrown out. The mere pendency of such cases partially defeats the purpose of the DMCA, since it costs time and money to defend this nonsense.

The best thing about Io v. Veoh is that it dismisses the case on summary judgment, avoiding the necessity for a trial. Hopefully the Courts will start dismissing these types of cases even earlier, at their very outset.

Re:Why the difference between copyright enforcemen

[Timothy Brownawell]

If that had been a movie, a song or a video game, someone would be getting serious fines, with no take-down notice involved.

How do you know that?

If the porn was disseminated via a torrent, likely the same thing (no take down request, just court and fines).

Probably, since that doesn't involve presumed-innocent third parties doing the hosting on behalf of random users.

Re:DMCA take down provision doesn't get enough cre

[MobyDisk]

There was a recent Slashdot article where a judge ruled that the sender of the takedown notice must consider fair use rights. I think that will minimize the number of frivolous cases where someone just wants to suppress free speech.

Universal defense??

[Greymoon]

Seems to me torrent and song downloaders could use this DMCA provision to beat the RIAA in every case. For example, "I never received a take down notice, the files I so called 'provided' had no such notice on or in them".

suddenoutbreakofihateyousobad

[qualidafial]

Who's the idiot that keeps tagging everything "suddenoutbreakofcommonsense?" It was cute once or twice; now it makes me want to murder cute little furry animals.

DMCA

[Mooga]

the DMCA is 'designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age'."

I'm sorry, but which DMCA is he reading? Because the last time I read the DMCA, it was written to do the complete opposite.

Re:DMCA

[Icegryphon]

I know the DMCA is a attack to free speech. It has been abused many times to take down parodies or something someone did not personally like.

Re:DMCA

[NewYorkCountryLawyer]

I know the DMCA is a attack to free speech. It has been abused many times to take down parodies or something someone did not personally like.

I respectfully disagree. It is not the DMCA that is an attack on free speech, it is abuse of the DMCA that is an attack on free speech, and this is something that needs to be stopped.

Re:DMCA

[John Hasler]

Go back and read it again. Then read up on copyright law and on the legislative history of the DMCA. Takedown notices could and would be sent in the absence of the DMCA. The difference is that without the DMCA providers could and would be sued for copyright infringement even when they obeyed the notices, there would be no effective remedy for frivolous or malicous notices, and copyright owners would not be obligated to send notices at all before filing suit.

Ave. Q

[Laserwulf]

Trekkie Monster: "Why you think the net was born? Porn, porn, porn!!!"

Easy Out

[Nom du Keyboard]

So if the RIAA detects infringing music files on my computer I can demand that they send a properly compliant DMCA takedown notice. And as long as I comply with that notice and take down the specifically infringing file(s) -- remembering that they must also be the copyright owner to make this demand -- then I'm in the clear from their lawsuits.

I find it highly hypocritical...

[AnalogDiehard]

...that an industry that promotes immoral behavior seeks redress in a court that is grounded in morals.

Re:I find it highly hypocritical...

[John Hasler]

Courts are about law. They have nothing to do with morals, nor should they.

Re:I find it highly hypocritical...

[AnalogDiehard]

Under that reasoning then thieves, bank robbers, and murderers would escape the law. It is immoral to steal and immoral to kill. Whether you like it or not, courts deal with morals. Live with it.

Re:I find it highly hypocritical...

[jasmak]

Stealing, Robbing, and Murdering are all against the LAW... how is it about morals?

Re:I find it highly hypocritical...

[AnalogDiehard]

"Thou shalt not steal"

"Thou shalt not kill"

Re:I find it highly hypocritical...

[John Hasler]

How about one through four? Don't you think they should be law as well? Is it not also "immoral" to make idols? To forget the Sabbath?

Re:I find it highly hypocritical...

[Tim C]

So in this case the law and morals are in agreement. That does not mean that the one necessarily springs from the other.

The law is about what society deems to be acceptable and unacceptable behaviour. Morals help shape the law, but they are not synonymous.

Re:I find it highly hypocritical...

[John Hasler]

First, you confound the courts with the legislature. The former interprets law. The latter makes it. Second, you make (probably deliberately) an error of logic. Nothing I wrote implies that that which is immoral is neccessarily legal.

Re:I find it highly hypocritical...

[Maestro485]

Ever hear of murder one, murder two, murder three, manslaughter, etc?

Law takes circumstance into account. It's not as cut and dry as you make it out to be.

Re:I find it highly hypocritical...

[DinDaddy]

If something is illegal, it is a matter for the courts to act upon. That it is immoral as well is immaterial. Something that is legal but immoral is NOT a matter for the courts to act upon. Case dismissed.

And once again...

[jimand]

...porn leads the way in internet progress!

i don't mean to be rude

[AP31R0N]

eldavojohn, with all due respect, your sister's a whore.

Nothing personal.

(joking, or i'd be AC)

Re:i don't mean to be rude

[bennomatic]

Not AC? Now that's commitment to a bit!

Goto Bookmarks

[orielbean]

Add Bookmark

"Pirate" Advertising.....

[IHC Navistar]

Has anybody wondered why the Porn Industry has been virtually silent when it comes to piracy? It's simple: The more people pirate and distribute their material, the more people become interested in their products (considering they already have a captive audience anyways). And it works!

No

[sirwired]

The "Safe Harbor" provisions of the DMCA only protect unmoderated public machines. If you were to give your users the ability to place whatever music files they wished on your computer, then you are protected.

You putting files on your computer and sharing them will not allow you to take advantage of the "Safe Harbor" provisions.

SirWired

Re:No

[Nom du Keyboard]

The "Safe Harbor" provisions of the DMCA only protect unmoderated public machines. If you were to give your users the ability to place whatever music files they wished on your computer, then you are protected.

Your "users" are your other family members, yours and their friends and family, plus whatever hackers break into your machine and plant stuff. Does that qualify?

C-O-M-M-I-T-T-T-T-T-T-T..... Commit!

[AP31R0N]

What cracks me up is that someone modded me a flamebait for making a joke that was marked as a joke. Either someone didn't read the exchange i was replying to (wl, or people are abusing their mod points. Do i have karma stalkers?

"When you mod me flamebait, i was JOKING!"
- Krusty the Slashdotter

Re:C-O-M-M-I-T-T-T-T-T-T-T..... Commit!

[bennomatic]

Not only did you mark it as a joke, but your satire of the earlier exchanges was clear, and the joke was funny, to me at least.

I guess we can assume that the flamebait modding is effectively someone else playing a joke on you :/

Re:C-O-M-M-I-T-T-T-T-T-T-T..... Commit!

[SBacks]

I guess we can assume that the flamebait modding is effectively someone else playing a joke on you :/

That's a great idea! Use mods to be funny! But, how can we mod a mod?

Re:C-O-M-M-I-T-T-T-T-T-T-T..... Commit!

[Kemanorel]

If only there was some After-Mod market... Maybe "Mod My Mod"...

Or is that too meta?

Re:C-O-M-M-I-T-T-T-T-T-T-T..... Commit!

[bennomatic]

Metamod! The cruelest joke of all!

Re:C-O-M-M-I-T-T-T-T-T-T-T..... Commit!

[NewYorkCountryLawyer]

Not only did you mark it as a joke, but your satire of the earlier exchanges was clear, and the joke was funny, to me at least.

And as the person who was being satirized, I concur wholeheartedly. I laughed when I read it, and would have modded it "Funny".

Re:C-O-M-M-I-T-T-T-T-T-T-T..... Commit!

[bennomatic]

Ray, you're a good man.

Re:C-O-M-M-I-T-T-T-T-T-T-T..... Commit!

[NewYorkCountryLawyer]

Why, thank you, bennomatic.

Possible End-Arounds

[Anonymous Coward]

"The Court rejected the plaintiff's arguments showing possible ways that users could do an end-around..."

Funny thing is, they just showed videos from the site to demonstrate the "end-around."

Re:DMCA take down provision doesn't get enough cre

[John Hasler]

> My only problem with the provision is that in practice, it has been widely abused.

Takedown notices could and would be sent in the absence of the DMCA.

> The law itself provides a remedy against abuse.

Which would not exist without the law.

NOT in Vegas.

[fuckface]

I like Carlin's thinking on the matter. "Selling's legal, fucking's legal, why isn't selling fucking legal?" Only in Vegas.

No, NOT in Vegas. I wish people would stop making this claim. Prostitution is legal is certain counties of Nevada but it is NOT in Las Vegas.

Re:NOT in Vegas.

[LunaticTippy]

I like Carlin's thinking on the matter. "Selling's legal, fucking's legal, why isn't selling fucking legal?" Only in Vegas.

No, NOT in Vegas. I wish people would stop making this claim. Prostitution is legal is certain counties of Nevada but it is NOT in Las Vegas.

It's easy to understand why people get confused. They go to Vegas and are handed dozens of flyers for "escorts" as they wander around, most of the hotels have ads for "escorts" and they are approached by numerous prostitutes offering their services.

I thought that prostitution was illegal in Las Vegas until I went there. Then I had to double-check because it seemed to have been legalized. Sure enough, still illegal - just doesn't seem that way.

Re:DMCA take down provision doesn't get enough cre

[j0nb0y]

And also ISPs would lose a strong liability shield without the law.

Finally I hear something like this

[djfuq]

Ok, this is the first time ever that I have see a judge say something intelligent -
It is not Veoh's job to be perfect moralists and to punish the wicked thieves that don't want to pay for something until they love it.

That hinders social progress - this whole false moral crime thing. It just wastes resources, like war does.
Every bit of destruction and waste and futile squabbling amounts to lost time and inaction for the human race.

Currently I feel social progress is made of 99% setbacks and gets more complex exponentially as more people are created - now nobody is ultimately responsible for anything! So I hope this Judge's decision hopefully is that missing 1% of progress we need.... ugh

I wish progress was more streamlined so I could own a space cruiser and have a cyborg body that has free music 24/7 FTW

Re:Finally I hear something like this

[djfuq]

Gawd I always have to misspell SOMETHING in my rants argh