Not only is there a problem with a causal chain of action (all they can do is probably hold the ISP account holder responsible, but I am not sure that is law or precedent), but they misrepresent what BitTorrent does.
They claim that if you are a member of a swarm which is tied to a copyrighted work, then you must be distributing a portion of this copyrighted work, which is not true.
Unless they download a piece from you, they have no way of verifying that you "made available" a copyrighted work for download, or that you in fact committed the crime of distributing a portion of a copyrighted work.
As far as I can tell, they do not attempt to download a piece from each individual they are suing; if they do, then it gets interesting, but the way the law suit is worded, it looks like they are doing some pretty serious hand waiving at establishing the basics; all they seem to really do, is establish that X IP address was a member of Y swarm at Z time, and then claim that is prima facie evidence of copyright infringement, which is not the case...
Unfortunately, as lawyers often do, the plaintiff's counsel factually misrepresent BitTorrent technology and process in their claims to their favor. Any decent lawyer would get these suits thrown out on its face.
In their pre-amble, they claim that due to the nature of BitTorrent, anyone who is a member of a swarm after the monitoring agent has accessed the swarm is necessarily distributing some part of the file, and therefore guilty of distribution of a copyrighted work.
However, this is not how the technology works. To participate in a swarm, you do not actually have to have the file available, nor must you have downloaded it from someone else in an illegal fashion. You do not HAVE to upload anything, or even download anything infringing to participate in a swarm.
As always, unless a 3rd party specifically downloads data from you that is copyrighted material one cannot demonstrate copyright infringement.
Additionally, without some form of physically captured copyrighted materially downloaded from a peer, I would love to see them prove jurisdiction.
Them requesting a list of seeds from a tracker, does not constitute your IP committing an act of copyright infringement in the District of Columbia, and I would like to see them demonstrate the routing information showing that whatever you did, necessarily passed through their, particularly if you are in the North East or Northern California.
They may succeed in monetizing this flow, but only because most lawyers would be too clueless to defend themselves properly — it bothers me that one can get away with making such materially false representations about the way that a technology works to a court, in order to get judgements on one's side. They either don't understand, or are lying, and given the amount of technology used by the monitoring service, I'm betting someone somewhere has advised them more accurately how the technology works.
I think yours is one of the most insightful comments here; but you come to the wrong conclusion.
Of course there is an element of protectionism of Berlusconi's traditional media empire; but why exactly should Google have a media distribution network that is not subject to the same standards? None of his papers, magazines, or television networks can publish or air content without clearing the rights in a traditional manner, so why should Google continue to enjoy the free ride that the rest of the world has given them?
When the DMCA was written in the US, the robotic exemption clause was included to protect actions like search and tasks that were completely automated and benign, but that could otherwise be construed as technically illegal. It was by no means intended to absolve internet content distributors of all duty to vet content before beginning distribution, but that is the effect it has had. YouTube sells ad space and changes the content flow; it no longer constitutes an automated content blind common carrier, and it should be subject to the restrictions placed on other distributors.
Sigh. You are allowed to post the video to your own site because you are not making a profit off it and there is a public interest in the dissemination of the piece as a news item, and you are the photographer. You have certain rights to the footage; but you can't necessarily assign them to a 3rd party attempting to profit of the "work".
Google is not allowed to distribute the video because they do not own the rights to the cops likeness, you can not transfer or issue those moral rights to them, and they are using it to generate profit by selling ad space in and around the video. Additionally, it seems in this situation there are privacy issues such as where the video was taken and whether the subject gave consent to be videotaped, or could have a reasonable belief their behavior would be private and protected.
Feel free to post the video on your own site to send to people for non-profit public awareness purposes. A for profit entity should not necessarily be allowed to do this, and if they are doing so in the same way a network might air a video during a news show for informative purposes, they should be subject to the same standards of care and FCC oversight that the Nightly News etc is; ie present both sides, give equal time, and have documentation to back up everything being shown or said.
This is fundamentally different than your examples; by definition youTube is using this content to turn a financial profit; they are not blind such as a phone company, who makes a profit by charging a fee to two users and provides a private channel of communication between them, or the mail, which is also private communication.
People need to stop thinking of YouTube / Google as some helpless 3rd Party that is not responsible for the content it disseminates, and that the paradigm of email or a network neutral approach applies. They are not a common carrier with distinct sender/receiver parties; they are a public distribution network accessible by all much closer to broadcast television. A television network would not be allowed to air a video like this without clearing all the rights to it, unless they were using it as part of a news piece, and even then they might have to blur some of the faces etc. Why should google not have a similar duty of care?
Google and Youtube are essentially for profit entities which sell ad space next to, before, or on top of content provided by another entity. All internet content distributors have a legal duty to make sure they have the rights to the content they distribute, before doing so.
Yes this is inefficient and would curtail the growth of such sites, but their explosive growth is only because they are not responsible for their true cost of doing business, and have been getting a free ride for far too long through a loophole exemption in the DMCA. I should not have to patrol the internet to make sure my copyrights are not being violated; I should be able to go to sleep at night knowing that my content is safe wherever it is being distributed, because that distributor has taken the necessary precautions to clear all rights and compensate performers, artists, and creators appropriately; even if that performer is an autistic child.
And yes, I do expect that someone at Google should watch every video, and file the accompanying paperwork; talent release forms, rights releases for music, photographic releases from the dp etc... Thats how it works with every other form of mass media. If it is impractically expensive; then perhaps the notion of Google, Facebook, etc, are impractical in and of themselves. And this would not violate free speech — you clearly don't have a firm grasp of what Free Speech actually means or entails. Copyright fraud or intellectual property theft are not protected elements of free speech.
That by definition you are using this content to turn a financial profit.
People need to stop thinking of YouTube / Google as some helpless 3rd Party that is not responsible for the content it disseminates. A television network would not be allowed to air a video like this without clearing all the rights to it, unless they were using it as part of a news piece, and even then they might have to blur some of the faces etc.
Google and Youtube are essentially for profit entities which sell ad space next to, before, or on top of content provided by another entity. All internet content distributors have a legal duty to make sure they have the rights to the content they distribute, before doing so.
Yes this is inefficient and would curtail the growth of such sites, but their explosive growth is only because they are not responsible for their true cost of doing business, and have been getting a free ride for far too long through a loophole exemption in the DMCA. I should not have to patrol the internet to make sure my copyrights are not being violated; I should be able to go to sleep at night knowing that my content is safe wherever it is being distributed, because that distributor has taken the necessary precautions to clear all rights and compensate performers, artists, and creators appropriately; even if that performer is an autistic child.
Through intention or error technology companies, media pundits, and scholars have overly narrowed the recent public debate by misidentifying the potential points of origin of Internet bias. Rather than expressing opinions of public interest regarding the future of the Internet as a global network, the discussion battles back and forth between two markedly corporate perspectives on physical network infrastructure and ignores issues concerning the utilization and neutrality of the Internet as an emergent system and larger whole.
Incumbent upon any desire to protect the ideal of net neutrality is the assumption that we currently possess a neutral system we might care to protect. This is not a valid supposition. As a first measure, I suggest that the debate on net neutrality be widened to include not only the physical network questions as it has in the past, but also the related concerns of unfair influence over the Internet including the meta and virtual entities that are Cyberspace and the World Wide Web. The only way to responsibly execute reform or regulation in this arena must be preceded by a comprehensive understanding of the interconnectedness of the competing issues. Targeting the physical elements for legislation without examining the virtual or the broader context and consequences, could be far more disastrous than even a hands-off approach.
But how exactly is the Internet no longer neutral? Why is this expansion or redefinition of terms necessary? From the standpoint of Economic Theory, Metcalfe's Law tells us the value of a network is roughly equal to the square of the number of members of the system and Reed's Law parallels this statement for utility. When linked with network externalities (i.e. when you buy a fax machine, other fax owners benefit because they can now fax you) sites or services with many members can be transformed into powerful competitive (or anti-competitive) weapons. The vast networks of information, users, and sites, created by several web services providers are thus an in-ignorable source of inefficiencies of scale and conflicts of interest.
A capitalist, corporate driven Internet (such as we have now) cannot be as unbiased and democratic as trends such as the "blogosphere" and media representation would have it appear. Cyberspace, the meta-realm emergent from the physical "network," is highly polarized, highly prejudicial, and highly subject to the influence of powerful, unchecked, unregulated, and at times even legally protected corporations. These corporations are the very members of the "High Tech Broadband Coalition" that first advocated neutrality legislation in its current form: Amazon, Google, Yahoo, Microsoft, and other major application, content, platform, and services providers. Of course they favor these laws! However, the virtual realm of cyberspace is dependent upon, not separate from, the physical network and should not be treated as such.
Google, arguably the most powerful entity on the World Wide Web, provides clear evidence of the current presence of partiality. A first illustration is the company's regulation of "acceptable" content for their index. Google's practice of excluding sites that do not conform to their guidelines is without question inconsistent with their professed corporate culture of doing no evil and mission of indexing the world's information. If a site were merely black flagged and sent to the bottom of the listings Google's apologetic arguments suggesting a greater good to society by influencing the organization and presentation of information on a global scale might be worth discussion. However, they do not do this; they remove content entirely from their index. This is irresponsible and a behavior they may only practice because of their commanding corporate status and extremely high power level relative to those they effectually regulate. Ironically, Google gained this position of supremacy and authority because of the prior neutral democratic nature of the Internet they now repress and because of their reputation of integ
During a Nonverbal communication class while an undergrad I did significant research into both the literature and previously performed experiments on this subjecte and found an alltogether different result. I posted my paper at:t:
The introductory paragraph: Non-verbal communication is undeniably a core part of human interaction. The slightest nod of the head, blink of an eyelid, or ill-timed cough can, when analyzed in context, convey the truth of meaning in a conversation. However, today's most utilized communication tool seems to simply deny access to all traditional non-verbal devices. The Internet, not inherently as a medium, but in its current manifestation, with its current crop of computer-mediated communication (CMC) utilities forces use of the written word as the primary medium of rapid communication. Such absence of vocal cues, modifiers, and adaptors utterly eliminates the 63% (or more) of information conveyed in a normal, Face-to-Face (FtF) situation. Such an absence would seem to preclude the Internet and CMC as a forum for social communication and emotional interaction. However, this is a false assumption. A completely independent set of replacement nonverbal behaviors have developed in order to augment the perceived sterility of text-only communication. Furthermore, research demonstrates that not only may social and emotional relationships develop through CMC, but now tend to be the primary utilizations of such technologies. These results arise from a multitude of studies focusing on the intrinsic nature of human communication and the specific manner in which users redefine NVC for the context of this constantly evolving low media richness environment.
Simply, humans have adapted admirably to the demands of this new method of communication
Slashdot Mirror
Not only is there a problem with a causal chain of action (all they can do is probably hold the ISP account holder responsible, but I am not sure that is law or precedent), but they misrepresent what BitTorrent does.
They claim that if you are a member of a swarm which is tied to a copyrighted work, then you must be distributing a portion of this copyrighted work, which is not true. Unless they download a piece from you, they have no way of verifying that you "made available" a copyrighted work for download, or that you in fact committed the crime of distributing a portion of a copyrighted work. As far as I can tell, they do not attempt to download a piece from each individual they are suing; if they do, then it gets interesting, but the way the law suit is worded, it looks like they are doing some pretty serious hand waiving at establishing the basics; all they seem to really do, is establish that X IP address was a member of Y swarm at Z time, and then claim that is prima facie evidence of copyright infringement, which is not the case...
Unfortunately, as lawyers often do, the plaintiff's counsel factually misrepresent BitTorrent technology and process in their claims to their favor. Any decent lawyer would get these suits thrown out on its face. In their pre-amble, they claim that due to the nature of BitTorrent, anyone who is a member of a swarm after the monitoring agent has accessed the swarm is necessarily distributing some part of the file, and therefore guilty of distribution of a copyrighted work. However, this is not how the technology works. To participate in a swarm, you do not actually have to have the file available, nor must you have downloaded it from someone else in an illegal fashion. You do not HAVE to upload anything, or even download anything infringing to participate in a swarm. As always, unless a 3rd party specifically downloads data from you that is copyrighted material one cannot demonstrate copyright infringement. Additionally, without some form of physically captured copyrighted materially downloaded from a peer, I would love to see them prove jurisdiction. Them requesting a list of seeds from a tracker, does not constitute your IP committing an act of copyright infringement in the District of Columbia, and I would like to see them demonstrate the routing information showing that whatever you did, necessarily passed through their, particularly if you are in the North East or Northern California. They may succeed in monetizing this flow, but only because most lawyers would be too clueless to defend themselves properly — it bothers me that one can get away with making such materially false representations about the way that a technology works to a court, in order to get judgements on one's side. They either don't understand, or are lying, and given the amount of technology used by the monitoring service, I'm betting someone somewhere has advised them more accurately how the technology works.
I think yours is one of the most insightful comments here; but you come to the wrong conclusion.
Of course there is an element of protectionism of Berlusconi's traditional media empire; but why exactly should Google have a media distribution network that is not subject to the same standards? None of his papers, magazines, or television networks can publish or air content without clearing the rights in a traditional manner, so why should Google continue to enjoy the free ride that the rest of the world has given them?
When the DMCA was written in the US, the robotic exemption clause was included to protect actions like search and tasks that were completely automated and benign, but that could otherwise be construed as technically illegal. It was by no means intended to absolve internet content distributors of all duty to vet content before beginning distribution, but that is the effect it has had. YouTube sells ad space and changes the content flow; it no longer constitutes an automated content blind common carrier, and it should be subject to the restrictions placed on other distributors.
Just my two cents.
Sigh. You are allowed to post the video to your own site because you are not making a profit off it and there is a public interest in the dissemination of the piece as a news item, and you are the photographer. You have certain rights to the footage; but you can't necessarily assign them to a 3rd party attempting to profit of the "work".
Google is not allowed to distribute the video because they do not own the rights to the cops likeness, you can not transfer or issue those moral rights to them, and they are using it to generate profit by selling ad space in and around the video. Additionally, it seems in this situation there are privacy issues such as where the video was taken and whether the subject gave consent to be videotaped, or could have a reasonable belief their behavior would be private and protected.
Feel free to post the video on your own site to send to people for non-profit public awareness purposes. A for profit entity should not necessarily be allowed to do this, and if they are doing so in the same way a network might air a video during a news show for informative purposes, they should be subject to the same standards of care and FCC oversight that the Nightly News etc is; ie present both sides, give equal time, and have documentation to back up everything being shown or said.
This is fundamentally different than your examples; by definition youTube is using this content to turn a financial profit; they are not blind such as a phone company, who makes a profit by charging a fee to two users and provides a private channel of communication between them, or the mail, which is also private communication.
People need to stop thinking of YouTube / Google as some helpless 3rd Party that is not responsible for the content it disseminates, and that the paradigm of email or a network neutral approach applies. They are not a common carrier with distinct sender/receiver parties; they are a public distribution network accessible by all much closer to broadcast television. A television network would not be allowed to air a video like this without clearing all the rights to it, unless they were using it as part of a news piece, and even then they might have to blur some of the faces etc. Why should google not have a similar duty of care?
Google and Youtube are essentially for profit entities which sell ad space next to, before, or on top of content provided by another entity. All internet content distributors have a legal duty to make sure they have the rights to the content they distribute, before doing so.
Yes this is inefficient and would curtail the growth of such sites, but their explosive growth is only because they are not responsible for their true cost of doing business, and have been getting a free ride for far too long through a loophole exemption in the DMCA. I should not have to patrol the internet to make sure my copyrights are not being violated; I should be able to go to sleep at night knowing that my content is safe wherever it is being distributed, because that distributor has taken the necessary precautions to clear all rights and compensate performers, artists, and creators appropriately; even if that performer is an autistic child.
And yes, I do expect that someone at Google should watch every video, and file the accompanying paperwork; talent release forms, rights releases for music, photographic releases from the dp etc... Thats how it works with every other form of mass media. If it is impractically expensive; then perhaps the notion of Google, Facebook, etc, are impractical in and of themselves. And this would not violate free speech — you clearly don't have a firm grasp of what Free Speech actually means or entails. Copyright fraud or intellectual property theft are not protected elements of free speech.
That by definition you are using this content to turn a financial profit. People need to stop thinking of YouTube / Google as some helpless 3rd Party that is not responsible for the content it disseminates. A television network would not be allowed to air a video like this without clearing all the rights to it, unless they were using it as part of a news piece, and even then they might have to blur some of the faces etc. Google and Youtube are essentially for profit entities which sell ad space next to, before, or on top of content provided by another entity. All internet content distributors have a legal duty to make sure they have the rights to the content they distribute, before doing so. Yes this is inefficient and would curtail the growth of such sites, but their explosive growth is only because they are not responsible for their true cost of doing business, and have been getting a free ride for far too long through a loophole exemption in the DMCA. I should not have to patrol the internet to make sure my copyrights are not being violated; I should be able to go to sleep at night knowing that my content is safe wherever it is being distributed, because that distributor has taken the necessary precautions to clear all rights and compensate performers, artists, and creators appropriately; even if that performer is an autistic child.
Through intention or error technology companies, media pundits, and scholars have overly narrowed the recent public debate by misidentifying the potential points of origin of Internet bias. Rather than expressing opinions of public interest regarding the future of the Internet as a global network, the discussion battles back and forth between two markedly corporate perspectives on physical network infrastructure and ignores issues concerning the utilization and neutrality of the Internet as an emergent system and larger whole.
Incumbent upon any desire to protect the ideal of net neutrality is the assumption that we currently possess a neutral system we might care to protect. This is not a valid supposition. As a first measure, I suggest that the debate on net neutrality be widened to include not only the physical network questions as it has in the past, but also the related concerns of unfair influence over the Internet including the meta and virtual entities that are Cyberspace and the World Wide Web. The only way to responsibly execute reform or regulation in this arena must be preceded by a comprehensive understanding of the interconnectedness of the competing issues. Targeting the physical elements for legislation without examining the virtual or the broader context and consequences, could be far more disastrous than even a hands-off approach.
But how exactly is the Internet no longer neutral? Why is this expansion or redefinition of terms necessary? From the standpoint of Economic Theory, Metcalfe's Law tells us the value of a network is roughly equal to the square of the number of members of the system and Reed's Law parallels this statement for utility. When linked with network externalities (i.e. when you buy a fax machine, other fax owners benefit because they can now fax you) sites or services with many members can be transformed into powerful competitive (or anti-competitive) weapons. The vast networks of information, users, and sites, created by several web services providers are thus an in-ignorable source of inefficiencies of scale and conflicts of interest.
A capitalist, corporate driven Internet (such as we have now) cannot be as unbiased and democratic as trends such as the "blogosphere" and media representation would have it appear. Cyberspace, the meta-realm emergent from the physical "network," is highly polarized, highly prejudicial, and highly subject to the influence of powerful, unchecked, unregulated, and at times even legally protected corporations. These corporations are the very members of the "High Tech Broadband Coalition" that first advocated neutrality legislation in its current form: Amazon, Google, Yahoo, Microsoft, and other major application, content, platform, and services providers. Of course they favor these laws! However, the virtual realm of cyberspace is dependent upon, not separate from, the physical network and should not be treated as such.
Google, arguably the most powerful entity on the World Wide Web, provides clear evidence of the current presence of partiality. A first illustration is the company's regulation of "acceptable" content for their index. Google's practice of excluding sites that do not conform to their guidelines is without question inconsistent with their professed corporate culture of doing no evil and mission of indexing the world's information. If a site were merely black flagged and sent to the bottom of the listings Google's apologetic arguments suggesting a greater good to society by influencing the organization and presentation of information on a global scale might be worth discussion. However, they do not do this; they remove content entirely from their index. This is irresponsible and a behavior they may only practice because of their commanding corporate status and extremely high power level relative to those they effectually regulate. Ironically, Google gained this position of supremacy and authority because of the prior neutral democratic nature of the Internet they now repress and because of their reputation of integ
During a Nonverbal communication class while an undergrad I did significant research into both the literature and previously performed experiments on this subjecte and found an alltogether different result. I posted my paper at:t:
s /131-Remediation-Of-Nonverbals-In-Computer-Mediate d.html
http://www.moderndemagogue.com/index.php?/archive
The introductory paragraph: Non-verbal communication is undeniably a core part of human interaction. The slightest nod of the head, blink of an eyelid, or ill-timed cough can, when analyzed in context, convey the truth of meaning in a conversation. However, today's most utilized communication tool seems to simply deny access to all traditional non-verbal devices. The Internet, not inherently as a medium, but in its current manifestation, with its current crop of computer-mediated communication (CMC) utilities forces use of the written word as the primary medium of rapid communication. Such absence of vocal cues, modifiers, and adaptors utterly eliminates the 63% (or more) of information conveyed in a normal, Face-to-Face (FtF) situation. Such an absence would seem to preclude the Internet and CMC as a forum for social communication and emotional interaction. However, this is a false assumption. A completely independent set of replacement nonverbal behaviors have developed in order to augment the perceived sterility of text-only communication. Furthermore, research demonstrates that not only may social and emotional relationships develop through CMC, but now tend to be the primary utilizations of such technologies. These results arise from a multitude of studies focusing on the intrinsic nature of human communication and the specific manner in which users redefine NVC for the context of this constantly evolving low media richness environment.
Simply, humans have adapted admirably to the demands of this new method of communication