YouTube Fires Back At Viacom 183
NewYorkCountryLawyer writes "As we say in the legal profession, 'issue has been joined' in Viacom v. YouTube. In its answer to Viacom's complaint (PDF), filed Friday, YouTube says Viacom's lawsuit is intended to 'challenge... the protections of the Digital Millennium Copyright Act ("DMCA") that Congress enacted a decade ago to encourage the development of services like YouTube.' It goes on to say that the suit 'threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression.'"
FP? (Score:2, Insightful)
-uso.
Re:FP? (Score:5, Interesting)
It is of course Google and YT's prerogative to operate their site as they see fit and even violate their own ToS as they have very clearly done here.
But by keeping xenutv1 shut down while allowing a Scientology to open a sponsored account calls into serious doubt how much we can trust YouTube to remain an impartial advocate of free speech in the user-created content industry.
Do No Evil my foot.
Re:FP? (Score:5, Insightful)
Re:FP? (Score:4, Insightful)
It is a sad state that most businesses have obligations to shareholders, but to suggest that all businesses only care about cash must, by extension, mean that this is true of all people.
I'll grant you "most", but the way you (and others like you) are wording this makes it an excuse. It's not, especially for a company which claims "Don't Be Evil." Shame on Google, shame on YouTube, and shame on you for giving them an excuse.
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Re:FP? (Score:4, Informative)
Google also indexes the entire fucking Internet, so the filtering is bound to slip up somewhere. Things will slip through the cracks, as opposed to not going through at all. That's also good.
Doing business with the PRC does support the PRC, which is bad. And they are actively censoring, which is evil. That's why it's debatable both ways.
Caving to Scientologists is pretty much unarguably bad, with pretty much zero positive side effects.
Re:FP? (Score:4, Insightful)
Scientology is a complete fraud... no argument there.
Re:FP? (Score:4, Insightful)
They are associating with the PRC, so maybe guilt by association, but it's not as though the PRC would stop just because Google refused to censor. They'd just block Google, and everyone there would use Baidu instead.
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And there is some credibility to that. It's my understanding that Google has something like 25% market share in China, and Baidu pretty much has the rest. Providing competition to Baidu is a good thing.
Just playing devil's advocate here, by the way. I wouldn't choose to censor, pretty much at all. But the fact that we're still having this conversation -- and, on top of that, there have been a few +4, Insightful, on bot
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Just, quite clearly, saying how many businesses operate.
For example: When you buy enough advertising in a magazine, you get editorial for free.
When you watch the news, the sponsors products will turn up in news articles when possible. This isn't a coincidence.
Now businesses have a primary goal of making money, your higher execs will usually promote people who make the most money to managerial positions. Sometimes these promoted individuals are clever folk wh
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For example: When you buy enough advertising in a magazine, you get editorial for free.
When you watch the news, the sponsors products will turn up in news articles when possible. This isn't a coincidence.
And when you pull this enough, people start to catch on, and dislike it. That's actually one of the reasons Google was successful in the first place -- they separate out the "sponsored links", clearly and plainly, and otherwise deliver solid, accurate results.
The theory is, at the very least, you want to pretend to be ethical, even for business reasons alone. Altruism works, evolutionarily, for individuals. Why not for corporations?
My point is there is a real disconnect between how people act in businesses (particularly in America) and how a person acts in the real world.
And my point is, that doesn't excuse how people act in businesses.
Maybe th
Re:FP? (Score:5, Insightful)
(a) an individual can choose, in any given moment, between self interest and trying to help someone else, but
(b) a corporate board of directors and corporate officers are pretty much required to choose the corporation's self interest. So a corporation -- if not closely regulated -- is essentially a sociopath with perpetual life.
Re:FP? (Score:5, Interesting)
Many people confuse "can't" with "won't", even in the personal case. I absolutely can walk down the street naked. I won't, because it's embarrassing, illegal, and unhealthy in this weather.
They might well lose their job and their reputation, and have to start over in the mail room somewhere else, but they have that choice. In fact, they might gain a reputation for being an ethical person, which isn't bad.
So it is, again, that they won't -- that they care about their job more than their ethics. And if they care about their job that much, it probably has something to do with the money.
Re:FP? (Score:4, Informative)
While I usually agree with your posts ... (Score:3, Insightful)
In fact, I would say that being a good corporate citizen is in the best interests of the shareholders. Of course there is plenty of room for many opini
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I have to disagree slightly here due to what I call "weasel phrasing". While you're absolutely correct that directors and such have a legal duty to do what is in the best interest of the shareholders, it doesn't necessarily follow that grabbing all the cash you can get is in the best interests, nor is making as much money as is humanly or inhumanely possible. In fact, I would say that being a good corporate citizen is in the best interests of the shareholders. Of course there is plenty of room for many opinions here, because the phrase "best interests" is open to as many interpretations as there are people. While some interpretation are clearly wrong and illegal, there is still a very wide range of perfectly valid opinions. It is statements like yours that give companies the excuse to be as bad as they want, and I for one disagree with that stance. I will now be prepared to see you blast all of my reasoning out of the water. :D
There's nothing wrong with your reasoning. I'm all for corporations being good citizens, whether it is or is not in the best interests of the shareholders' bank accounts. I would hold up Ben and Jerry's as a shining example. It did a lot of things which may have cut against the bottom line, but in the long run the company did fine.
And of course there are many examples we could give of the opposite; corporations which were supposedly acting in the shareholders' best interests, but their behavior got them
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With not-for-profits, the purposes set forth in the "charter" are significant. For business corporations, no.
What is in the "best interests of the shareholders" is debatable, but no director or officer ever got in trouble for legally making money for the shareholders.
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Thanks for your responses. "...but no director or officer ever got in trouble for legally making money for the shareholders." If a set up a corporation that sold stock to the public and stated in my corporate charter that our business is making shoes, but instead of making shoes I invested in corn futures, would this be legal or actionable in a civil suit? What if I made more money investing in corn futures than I would have making shoes?
I don't know. Never saw a case like that.
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Which is pretty much what a sociopath is.
So as I said before, a corporation is pretty much a sociopath, one with a perpetual life.
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"So a corporation -- if not closely regulated -- is essentially a sociopath with perpetual life."
Well there's a really depressing thought to start the day. Even more so given the reliability of the source. But nothing is gained by trying to hide from or deny unpleasant realities. At the same time, I think it helps to explain why you do what you do. Thank you and keep up the good work. Your "RIAA got into trouble for doing this wrong" stories always make my day. I sometimes think that corporations are essentially the legal equivalent of a genetic engineering experiment gone horribly awry.
Well it doesn't have to be depressing. The corporation is a creature of statute. The same society that created the statute can also create laws and regulations -- and more importantly enforce its laws and regulations -- to keep the corporation in check.
The Ronald Reagan era, which we are still in, has attempted to destroy those laws and regulations. But it doesn't have to be that way.
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But with proper laws, and proper law enforcement, it can be okay.
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Bullshit right back at ya. There are clear separations between individuals and organizations, one of the most fundamental of which is a distinction between the values they hold. Guilt by association may still apply, people must of course be accountable for their own behavior, and the old Nazi 'I was just following orders' excuse holds little water even under extreme circumstances, BUT, you are tal
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I'd like to see YouTube embrace Ogg Theora format and make it easier to download videos.
* - never make that wish to a genie because he'll give you a gallon of gas and a speedboat and then the boat will explode and kill you.
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Re:The best part was left out... (Score:5, Interesting)
Re:The best part was left out... (Score:5, Interesting)
Re:The best part was left out... (Score:5, Insightful)
Re:The best part was left out... (Score:4, Insightful)
Re:The best part was left out... (Score:5, Informative)
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I think the point was that a jury will not always decide what we expect they would, or should, decide.
Re:The best part was left out... (Score:4, Informative)
What I would say about juries is that they usually do the right thing. Which means the RIAA will usually lose.
Note that the RIAA has strictly avoided jury trials, until they had one where everything was in alignment:
a Native American defendant who lived 120 miles away from the courthouse in a different community;
a lawyer who was being held captive in the case;
a few bad facts that could only be explained by a technological expert witness who could talk about zombies, etc.;
defendant having no expert witness;
a judge who was unfamiliar with the controlling copyright law issues.
I could go on and on.
Re:The best part was left out... (Score:4, Insightful)
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I don't think you should generalize based on ONE trial. Especially one that even the Judge has recognized was conducted in a flawed manner.
The instructions may have been vital for finding her guilty or not guilty, but even if the verdict is wrong because "making available" doesn't equal copyright infringement they awarded almost 10k$/song. Even if the law had specificly stated that making a copyrighted work available is illegal, that's still insane damages compared to retail value based on an emotional response. But as you say, it's one trial.
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The jury tria
I would not be too sure about that. (Score:4, Interesting)
Remember that stupid $250,000 judgement the RIAA managed to get out of a jury? That the jury was stacked full of people who had never used the internet? How they were given improper instructions and bogus theories of "making available"?
Think how much easier it would be to find a jury that knew nothing about YouTube. They would eat up bullshit from Viacom about how Google became popular and made all of it's money off their garbage. They would know even less about slimy operations like Media Defender. Google could show them quirky home videos and free professional videos from the site and tell them that this is what the site was all about but it would be too foreign for the to understand. Society still has expectations that are warped by 90 years of government granted monopoly broadcast.
It will take another generation to heal and that will only happen if this trial goes right.
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They will comply.
Jaimie Thomas case shows a lot. (Score:1, Flamebait)
The DOJ jumped in to approve of everything the RIAA won in that case [slashdot.org]. It's sickening, but it is probably closer to the average public opinion than Slashdot is. We live in a country that basks in hateful, idiotic talk radio. Most of that toxic sludge is directed and purposeful [wikipedia.org].
But, but... they're two big corporations... (Score:2, Funny)
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Re:But, but... they're two big corporations... (Score:4, Interesting)
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In such a situation, why don't we just side with the corporation whose lawyers actually read the statute? (That would be Google).
AFAICT, Viacom are trying to muddy the waters by treating it as one great big copyright infringement suit. Google, OTOH, are saying "You're using the wrong law."
Now, prior to the DMCA being enacted, Viacom would probably have had to use the earlier copyright laws to sue Google (assuming those laws make it possible to sue Google). The question I have is that now the DMCA stands in addition to those copyright laws, does that mean that you can no longer sue under the older copyright law if action under the
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Too bad (Score:5, Insightful)
Where is the first place I go to find clips of a show? Youtube. After that I head off to google in hopes of finding it somewhere else.
Would I go over to Comedy Centrals website? SpikeTV? MTV? No, because these sites are cluttered with garbage and intrusive AD supported video players. I usually get lost at these sites anyway.
Also, I'm 22, the perfect demographic for these opportunities and you've seem to have alienated us over the years with your garbage websites.
In the end they will simply pay a license fee. (Score:5, Insightful)
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Mod parent up. After years of failing to get-on-board when it comes to the Internet, these big media companies now throw up crappy sites and expect to draw users away from YouTube. YouTube works because you're only ever a couple of clicks away from watching a video. Yet it took years for a lot of TV channels to fig
Re:Too bad (Score:5, Informative)
The TV company web sites are the absolute worst. Often I want to know something simple, like when new episodes of Heroes will start. I go NBC's site and wade through page after page of useless crap and Flash animation that has no use whatsoever and there is not one word about when new episodes start.
Their sites are always Flash-infested design disasters with absolutely no useful content linking to a schedule that has no information. I'm really not sure who goes to these sites.
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Would I go over to Comedy Centrals website? SpikeTV? MTV? No, because these sites are cluttered with garbage and intrusive AD supported video players. I usually get lost at these sites anyway.
I used to be like that - Daily Show/Colbert Report is hard to come by (legally) in Australia, so I'd head to youtube - until viacom started killing all the youtube links.
I gave up for a while, then realised that all the Daily Show and Colbert stuff is available online from the CC site.
Sure, its a bit lame, and its largely Flash which sucks - I'd certainly like a lightweight nerd-friendly site with just a video player and some clips (Daily Show isn't too bad).
I don't even mind the ads at all - because they
Given the track record of both parties... (Score:5, Funny)
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Summary of YouTube's response (Score:5, Funny)
"No we didn't."
torrentspies of the world vs. youtube (Score:3, Funny)
Viacom's case (Score:5, Insightful)
The only other point Viacom has is that YouTube transfers all video into their own 'proprietary' format and then 'copies' it (by which, I assume, they mean "show it on multiple instances of XYZ web browser"--or maybe backups). This is akin to saying that WordPress has its own proprietary format for blogs, by which it copies and distributes information. What a joke!
And things get funny toward the end of the response, too. YouTube denies point #24, which reads: If you can't even get that right, you may as well just give up!
My prediction (and hope) is that Viacom loses this one quickly and effectively.
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Viacom's case seems to be based on the fact that it's too hard for them to keep up with all the copyright infringing materials posted on YouTube, and therefore YouTube should bear the burden of distinguishing what is and is not infringing. This is just silly.
I agree.
Lawsuits like this make me wish that YouTube & similar companies would rollback any filtering or flagging of content that goes beyond the DMCA requirements just to stick it in the **AA's eye.
The only reason YouTube and others have played along with **AA members demands so far is on the off chance that YouTube & Co. can license content (or some exclusive hosting agreement) from them.
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And things get funny toward the end of the response, too. YouTube denies point #24, which reads:
If you can't even get that right, you may as well just give up!
Ironically, in the very next paragraph (paragraph 25) YouTube says, "Defendants admit that YouTube is a Delaware limited liability company with its principle place of business in San Bruno, California". Brilliant.
Corp != LLC (Score:1)
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"Defendant YouTube, Inc., is a Delaware corporation with its principal place of business in San Bruno, California.
If you can't even get that right, you may as well just give up!"
Deleware is very pro business. Where your corporation is registered and where you operate are two entirely different things.
Re:Viacom's case (Score:5, Informative)
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Company and corporation are two different terms legally, even though they're synonyms in usual speech, as you point out with your dictionary quote.
A limited liability company is not incorporated. It's somewhat like a cross between a corporation (Limited liability for the owners, as the name states) and a partnership (usually multiple owners), but there is no juristic person as there is with a corporation.
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I'm curious. Let's say ChoicePoint decides they'd like to do more business. So what they decide to do is establish a website called ReportOnConsumers.com. Where anyone can upload a document about anyone. Of course they want to make it possible for people to properly police
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Your argument is only relevant to this case if you published your own 'report' on the internet/tv/etc in the first place. Then it sure is your responsibility and your responsibility alone to police every instance that it is republished.
Copyright may be granted by default, but it is certainly not enforced on your behalf.
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Seriously, ignoring the fact that you've just described "The World Wide Web" as some yet-unrealized boogieman, I don't see what the problem is. I'm free to make credit-granting decisions based on essentially any criteria I want, except those few classes granted special legal protection. But "favorite shoe color" is not a protected class, and if I want to a
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Wait. (Score:1)
Is the goal destruction of the DMCA safe harbor? (Score:5, Interesting)
As I remember, the DMCA has a safe harbor provision for "platform" and "network" providers that, basically says - as long as you don't exercise control over the content on your platform/network, you cannot be sued for infringement, the plaintiff must sue the one who uploads/transfers using your service.
However, YouTube has entered into agreements and instituted technology to pre-emptively purge it's "platform" of copyrighted material - Therefore, they are no longer protected by the safe harbor.
I would hazard a guess that those network providers who implement the pre-emptive content blocking of copyrighted materials being shared by peer-to-peer filesharing will eventually also be targeted.
It's interesting that the *AA are insisting on pre-emptive content filtering and the network and platform providers are giving in -- not realizing that in doing so, they cease to be protected...
IMHO - The *AA knows they soon will no longer be able to go after end users - the handwriting is on the wall. So they are setting up the next wave of lawsuits - network and platform providers. Since these are typically corporations that will simply pay to get rid of a lawsuit, it's easy money.
But in order to sue them (or have a reasonable threat), they have to make sure the safe harbor provision does not apply. As soon as a network or platform provider begins to filter the traffic or content, the safe harbor doesn't apply and they're fair game.
Re:Is the goal destruction of the DMCA safe harbor (Score:1)
Slashdot = idiots (Score:4, Interesting)
The notion that filtering somehow invalidates the Title 17 Section 512 copyright infringement safe harbor is complete and utter bullshit which has gained inertia on Slashdot only by sheer repetition.
Please cite the exact line of the statue which you believe creates this effect before repeating this nonsense again.
The protection provided for service providers by OCILLA for service providers is damn near absolute, so long as they don't have actual knowledge of the infringement and so long as they comply with the takedown procedure. There is absolutely no requirement for neutrality or lack of filtering.
Viacom is arguing, among other things(*), that when the procedure is combined with anonymous users and the enormous scale of sites like Youtube that copyright is effectively nullified as an unintended side effect of how YouTube is complying with the takedown procedures, and that congress did not intend to nullify copyright. They will probably win that argument, because it's clearly true.
(*Viacom also argues that YouTube had actual knowledge of the infringement, that they are a publisher and not just a service provider because they transcode, thumbnail, and integrate the videos into their own pages rather than just make them available for download... Either of which would cause YouTube to lose the safe harbor.)
Re:Slashdot = idiots (Score:4, Insightful)
So, they are basically saying they don't have enough control of the internet, and that such situation should be declared as unfair by the congress, so that everyone making a site with thumbnails has to totally screen out every thing submitted by any user for copyright infringement.
So, copyright is not enough to them, they also want the world to police their own copyright for them.
They will probably win that argument, because it's clearly true.
Besides of how "true" it "clearly" is, the fact remains that the entertainment industry is spoiled and cannot stand a channel of distribution they cannot control, so they are wrong in my book. Also, what the heck? How is youtube or any web site supposed to know something is copyrighted? It should seriously be the author's responsibility to protect his own imaginary property.(512(c)(1)(B)), also (512(c)(1)(A)(2)) (Score:4, Informative)
Also, they allege that infringing activity is apparent, given YouTube's ability to filter out other things (pr0n and the copyrighted material of it's partners.)
Each of these allegations appears to be directed at voiding the safe harbor provision in the law.
Here are the relevant parts of the safe harbor provision (512(c)(1))
(1) In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
If so, couldn't You Tube / Google just say ... (Score:4, Interesting)
However, YouTube has entered into agreements and instituted technology to pre-emptively purge it's "platform" of copyrighted material - Therefore, they are no longer protected by the safe harbor.
If so, couldn't they just say this:
"OK, we'll turn off the filtering starting immediately and discuss whether there are contract violations with our contract partners as a separate matter from this case. We ask the court to rule that the safe harbor is clearly in effect once the filtering has stopped and limit this case to the period when the filtering was occurring. If plaintiffs don't agree and do want us to continue filtering pending the resolution of this case, we ask them to request that the filtering remain in effect and either waive any claims that the filtering invalidates any safe harbor provision of the DMCA or waive any damages for the period from now until the resolution of the case should it be determined that the safe harbor provisions would immunize us and filtering invalidates them."
Re:Is the goal destruction of the DMCA safe harbor (Score:2)
Is this really some corporate-backed entity trying to chip away at some of the self-destructive provisions of the DMCA? Will it attempt to establish the "meaning" of media in this age? Or will it be an out of court backstab leaving nothing changed and more and more people classified as criminals?
-dave
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"legitimate" (Score:1)
ViaCom Trawling? (Score:1, Interesting)
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Youtube Scares Viacomm Shitless (Score:4, Insightful)
First the lawsuits will start. I suspect those will fail. The next thing that happens after that is that someone will try to create a competing web site that completely misses the point and puts restrictions on users uploading content and tries to add DRM and advertising to any videos that do get uploaded. Then some gigantic media conglomerate will try to buy and bury Youtube. If all that doesn't work, they'll likely just give up and live with it. Not many companies make it past all that harassment though.
Re:Youtube Scares Viacomm Shitless (Score:5, Interesting)
What YouTube offers is the distribution of entertainment they did not create. Clearly it is distributing Viacom content as well as that from lots of other sources as well. Viacom isn't going to be able to control this and is likely doomed in the long run.
Of course, "entertainment" is going to be of the "Ow, My Balls" caliber pretty soon. I do not see an upside to this. It is not freedom for the masses, it is public theft of private property. The result will be the elimination of the private property from being created.
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If I steal your car, it is wrong because you no longer have it.
If I press a button and make a copy of your car; you still have it and are in no way harmed.
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lol
I download something from Napster
And the same guy I downloaded it from starts downloading it from me when I'm done
I message him and say "What are you doing? I just got that from you"
"getting my song back fucker"
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It is not freedom for the masses, it is public theft of private property. The result will be the elimination of the private property from being created.
You used the word "property" instead of the word "entertainment". When I can take a siesta a cozy little bungalow that somebody uploaded to YouTube, then your "property" argument will hold some water. Until then, please try harder to distinguish between "property" and "creative projects with an expected ROI for the people who paid for them".
As far as your "Ow, My Balls" argument goes... I assure you that you will find an intellectual balance on YouTube if you spent an hour or two looking. If you sear
re: entertainment (Score:2)
Hollywood cranked out mostly unoriginal, dull movies for the last year or two. (Many of their "biggest hits" have been adaptations of comic books and cartoons. Not that I have anything against comics, but let's face reality here. That material was aimed primarily at KIDS, and isn't exactly "high-brow literature". If that's the BEST Holly
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Just one more reason.... (Score:2, Insightful)
No Big Deal (Score:3, Insightful)
I don't think Viacom stands a chance... they need to show "willful, intentional, and purposeful" infringement. The case rests on data as a percentage basis, how many views turned out to be infringing content? 60%? 30%? 10%? 2%? IMO, if the answer is 60%, Viacom should win. If it is 2%, they should lose.
Only a threat to pirates and thieves (Score:2)
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Whitelisting vs. Blacklisting. (Score:3, Insightful)
Searching by tags and title is no guarantee, since some videos are blatantly fake (i.e. latest anime series X episode Y that actually have a previous episode - the comments in these ones are hilarious to read) or can contain fair use material. Perhaps they're parodies which redub the entire episode, so even developing a "video fingerprint" for these wouldn't be accurate.
So how is youtube going to implement a filter for copyrighted stuff? The answer is simple: They just can't.
So the only choice to determine whether a video is an illegal copy of a copyrighted work or not, is to watch it.
So - viacom complains that there are tons of copyrighted videos in youtube. Could you please explain how youtube, with its limited human infrastructure, keep in pace with all the copyrighted videos uploaded daily - no, every minute?
So yes, there is something youtube can do to improve the situation - disabling accounts which repeatedly upload illegal videos. But how to handle situations where a company doesn't like a video ABOUT them and post a DMCA complaint (i.e.e Scientology, creationists)? Will the uploader be banned just by using free speech? Clearly, each case needs to be handled separately, and that takes a lot of time.
In the end, it only comes to two choices: Check each video before it's made available on youtube (yeah right), or keep the current approach of taking down videos on every DMCA complaint.
So this is not about youtube "assisting piracy", it's about viacom not wanting to spend a penny in hiring people to search youtube and file DMCA complaints.
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This is a big case in determining the extent and exact nature of the DMCA. If You Tube/Google come out on top here, the onus of copyright enforcement will fall (more) square
Total control of information (Score:2)
The more and more I see these things, the more I think that sinister forces are at work to maneuver governments and industry to keep a strong lock down on the flow of information.
Democracies with hundreds of years of history of free speech and dissemination of information are under tremendous pressure to curb citizens right to share and transfer information. It is a totalitarian movement not stemming from Orwell's 1984 government, but the fascist working of corporation and government. The ironi
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The founders had enough experience with corrupt judges to not blindly trust them....