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RIAA Calls YouTube-Viacom Decision Bad Public Policy
adeelarshad82 writes "The Recording Industry Association of America voiced its opposition to the recent decision in the YouTube-Viacom copyright infringement case, stating that 'the district court's dangerously expansive reading of the liability immunity provisions of the [Digital Millennium Copyright Act] upsets the careful balance struck within the law and is bad public policy.' Cary Sherman, RIAA president, also wrote in a blog post, 'It will actually discourage service providers from taking steps to minimize the illegal exchange of copyrighted works on their sites.'"
'It will actually discourage service providers from taking steps to minimize the illegal exchange of copyrighted works on their sites.'
YES, THAT'S THE POINT. If you (the RIAA) want to police that crap, do it on your dime. The Service providers don't know jack about who owns what, and is not their responsibility.
Actually, putbacks are legally binding (see last two items).
$ make available
The DMCA does not make the exchange legal or illegal; rather, it provides a mechanism that allows ISPs to host user-uploaded content without liability for copyright infringement, provided the procedures are followed with respect to takedown notices. A person who makes infringing copies is still liable for making those copies, regardless of whether the copies are uploaded to an ISP, sold on the street, etc. Of course, not all copies are infringing (though the RIAA would probably disagree with this last statement).
Just for future reference,
33,000 USD of hard drives, currently at about 1.5 TiB for 80 USD, is 633,600 GiB.
633,600 GiB can store 158,400,000 songs, at 4 MiB apiece.
The second trial of Jammie Thomas awarded the RIAA 1,920,000 USD for 24 songs, which comes out to 80,000 USD apiece.
For 158,400,000 songs, the RIAA would be awarded 12,672,000,000,000 USD (12 trillion short scale). That's only a bit less than the national US debt, which is 13,208,593,598,669 USD (13 trillion short scale) as of this comment!
You're not picking nits -- you're so technically right that you're practically wrong.
The safe harbor only exists if "[the service provider] upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity." 17 USC 512(c)(1)(C).
You don't have to take advantage of the safe harbor provision. But if you don't, the copyright owner can bleed you dry. And don't think that corporate IP attorneys don't recognize that fact.
If you follow the DMCA, you can be sued. However, you can at worst wind up the trial stage with limited discovery and a summary judgment. The copyright owner faces a real challenge piercing the safe harbor -- as shown by the Viacom decision. You have no incentive to settle for any amount greater than the cost of defending yourself to this early conclusion, if you're inclined to settle at all.
If you do not follow the DMCA, you can be sued. Worse yet, even if you've decided that the video is fair use, you cannot limit discovery, and you are virtually certain to be unable to use summary judgment to avoid a trial on the merits. Fair use is a fact-based balancing test. Summary judgment can only be used where there is no reasonable factual dispute. If there's any resonable question of infringement instead of dair use, you're on your way to a trial and bench ruling or jury verdict. Also, unless the judge permits you to bifurcate issues like damages and willfulness, you're defending the whole enchilada at the same time. Infringement, damages, and enhancement. Your rational settlement number just became the costs of a complete defense, and a risk-of-loss-adjusted-number under at least one theory of copyright liability. Even worse, there's something to be said for the Vlad-the-Impaler logic of running someone through with their own legal costs. Think of SCO (acknowledging that they were, at first, the copyright aggressor), or a pre-Google YouTube running on venture capital without the shield of the safe harbor.
The first route is a cost you don't need. The second route is a cost you cannot afford.