Court Slams Record Companies in New Vimeo/DMCA Ruling (arstechnica.com)

Remember when Capitol Records sued Vimeo over copyright-violating videos? They just lost in court again, when an Appeals court overruled three lower court decisions. Slashdot reader NewYorkCountryLawyer shares the specifics of the Appeals court's findings: [T]he Copyright Office was dead wrong in concluding that pre-1972 sound recordings aren't covered by the DMCA... the judge was wrong to think that Vimeo employees' merely viewing infringing videos was sufficient evidence of "red flag knowledge"... a few sporadic instances of employees being cavalier about copyright law did not amount to a "policy of willful blindness" on the part of the company. "The decision once again affirms that the DMCA extends immunity to a service provider for the infringement of their customers if the service provider removes material at the request of the right holder," writes Ars Technica.

Comments

Actually 3rd point was agreement with trial judge

[NewYorkCountryLawyer]

The story as published implies that the ruling overruled the lower court on the 3 issues. In fact, it was agreeing with the trial court on the third issue -- that the sporadic instances of Vimeo employees making light of copyright law did not amount to adopting a "policy of willful blindness".

Shifting the burden

[Anonymous Coward]

The record companies are always trying to make it someone else's responsibility to police their own property, but this is ridiculous because no one else *can* properly monitor for infringement.

This is because copyright infringement relies on a lack of permission. If someone has permission from the copyright holder to upload something, it's not infringement! As we learned in the Viacom v. YouTube case, they might in fact upload "leaked' material as a part of their marketing, which would appear to anyone but the copyright holder as obvious infringement. Thus, I question whether infringement can every be truly "obvious." Sure, I have a pretty good idea that the Photoshop on some warez site probably isn't legit, but I don't actually know who Adobe has and has not given permission to. I have no way to reach inside their head and get a list of everyone they've ever authorized. Heck, Viacom proved that even they can't always keep track of it: even after high-dollar lawyers spent hours reviewing material, they had to drop videos from the case because Viacom itself had authorized the videos! And they didn't survive just one round of legal review, but two. That's right, TWICE they had to correct themselves.

So what chance does some site owner have of guessing who they have and have not given permission to? How can a 3rd party be expected to keep accurate track of everyone that every one of the billions of copyright holders in the world (yes billions--copyright is automatic and we hold copyright on every trivial thing we make or write) has put out?

Obviously, it's an untenable burden for anyone, but the copyright holder is simply the only party with the information to do this and it's their property to begin with. So in no way and at no time will it or can it ever be appropriate to shift this burden onto some third party and every attempt to shift this burden onto someone else should be ridiculed for its thoughtlessness.

Re:Shifting the burden

[NotInHere]

This.

Giving a car analogy: if you operate a bridge, you maybe have surveillance cameras on that bridge. While you can easily scan the license plate numbers and check for cars that have been reported as stolen, trying to find out which car was stolen yourself is simply impossible. Is it the owner driving? Is it their spouse? Maybe they had a quarrel and the spouse stole the car? You can't look into the brain of the car owner (and there are hundreds of millions, if not billions on this planet) trying to find out who they have allowed to use their car.

Requiring from everybody who operates a bridge or owns a road to 1. equip it with surveillance technology and 2. find out which car has been stolen without reports from the owners is just simply ridiculous.

Re:Shifting the burden

[v1]

the copyright holder is simply the only party with the information to do this and it's their property to begin with. So in no way and at no time will it or can it ever be appropriate to shift this burden onto some third party and every attempt to shift this burden onto someone else should be ridiculed for its thoughtlessness.

This sounds a lot like the argument a lot of irresponsible parents make, trying to get laws passed to make society take over more of the parent's responsibility for educating, raising, and protecting their child. "It was your responsibility to begin with, you're in the best position to DO it, and you're the obvious choice. Why are you fighting this?" (makes up all sorts of wild excuses) Boils down to: You want me to do it for you because you don't want the burden of doing it yourself, and you're looking for someone else to force the responsibility onto. (ie lazy)

Re:Shifting the burden

[j-beda]

Of course they would assume every car is stolen. After all, they told us "You wouldn't download a car, would you?", right?

If anyone hasn't seen this PSA from "The IT Crowd", they have missed out:

https://www.youtube.com/watch?...

I guess it is probably infinging...

Re:Shifting the burden

[RubberDogBone]

The record companies are always trying to make it someone else's responsibility to police their own property, but this is ridiculous because no one else *can* properly monitor for infringement.

This is because copyright infringement relies on a lack of permission. If someone has permission from the copyright holder to upload something, it's not infringement!

They have repeatedly shown they don't even have a grasp of this. For example, multiple cases where videos or music content has been obtained from YouTube videos, which is then incorporated into another broadcast program, which is followed by a DMCA takedown to YouTube to remove the original videos that were the source of the clip or music, which are items the broadcaster does not own.

There have been cases of musicians doing original songs which they post for sharing or enjoyment, and the music is noticed and used in a production either under creative commons, or under an actual license to use the music, or sometimes no license. Then they come back to YT and demand a takedown on content they didn't create and don't own and have no right to suppress. Except their copyright filter says they did and demands it.

One recent case was where old video game footage found on YT was picked up -and I recall this was without permission- by the Family Guy show and used in an episode. Fox then went back to YT and demanded DMCA takedown on the ORIGINAL video they stole to use on the Family Guy episode. Because, you know, the clip they stole does match a few seconds of a particular episode, because it was the same footage, because they took it and used it. The creator of that game video was threatened with having his Google account suspended for copyright infringement on material he himself had created and recorded. As I recall, the DMCA was reversed and then reimposed again, followed by more appeals and public outcry.

From time to time, I work with a music company who sells royalty-free music. You pay once for a non-exclusive license and you can use it in that production forever. The customers buy a license but NOT the copyright. That's retained by the music company and the rights holders for the actual songs. The same music clips get licensed and used in various different projects all over the world. SO, Company A licenses a particular song and uses it in their show. Company B and C and D come along and wow they all also license it. It's a popular bit of music.

Company B asserts copyright over the music and attempts to DMCA the music company and several of the other customers also using it. The music company says no, you don't OWN the music, you licensed it. This goes on for a long time until finally lawyers from both sides sit down and clear it up. Company B apologizes and the matter is dropped.

And of course there have been several cases where Sony DMCA'd their own company for using Epic music in other Sony projects. It's a huge company and the branches often have no clue who is doing what. I wonder what the hourly rate is for suing yourself.

Re:Cloudflare?

[BronsCon]

Eh, because CloudFlare can't take down material they're not hosting. They could stop acting as a proxy for that site, but the DMCA has no provision that requires it; the DMCA only requires that they take down content they're hosting. If CloudFlare shut down the account of "infringing" sites, those sites would just jump behind another proxy, or not use one at all, within minutes. Further, the DMCA doesn't say the entire site must be taken down, just the infringing content.

In short, the only site for which a DMCA notice served to CloudFlare would be considered valid is CloudFlare's own site. Period.

Re:Cloudflare?

[currently_awake]

The Pirate Bay didn't host any copyrighted material either, but they still lost in court.