Posted by Colin B on 12/11/06 06:47

"Colin B" <Colin B@cb.org> wrote in message news:457c6bd8@clear.net.nz...

> This is why I think the video sharing site owner should approve all video
> submissions before publishing them, because the copyright laws are far too
> complex for a layperson to understand. People from overseas countries have
> probably never heard of the DCMA and quite a few uploaders from foreign
> countries wouldn't be able to read English. The copyright laws in their
> countries would probably be quite different to what is set out in the
> DCMA. To put the onus on the uploaders to decide what copyright approvals
> should be obtained is a difficult ask, and even conscientious and
> experienced filmmakers, such as myself, would not always know whether a
> video really needed copyright clearance before publication or not.
>
> I have just come across this item on internet, it argues that Youtube does
> receive a financial benefit directly attributable to infringing activity,
> and thus may not be immune to lawsuits.
>
> http://digg.com/tech_news/YouTube_Sued_For_Copyright_Infringement
>
> It says on this page that:
>
> "Upon further review of the text of the DCMA, it is quite clear that a
> problem arises:
> To be immune to lawsuits, ie, to make use of the 512(c) exception, YouTube
> must meet all of the following requirements laid forth by 512(c)(1):
> (A): does not have actual knowledge that the material is offending or
> removes it if it finds out that it is. ....Check, YouTube is good to go
> here. Also note: This is an abridged version, not the actual words.
> -----------------------------
> (B): `(B) does not receive a financial benefit directly attributable to
> the infringing activity, where the service provider has the right and
> ability to control such activity; and [note: actual text, commentary
> below]
> ------------------------------
> (C) does not matter, but involves removal of copyright material.
>
> Why? The problem is (B). YouTube does receive a financial benefit directly
> attributable to said infringing activity, AND, more importantly, they have
> the ability to control such activity. Unfortunately, the DCMA does not
> make any exceptions for the difficulty or cost of said ability to control
> such activity, only that such an ability does exist. While cost/difficulty
> of implementation may be taken into consideration by 512(i), it is not
> guaranteed.
>
> Finally, before you script kiddes get ahead of yourself, not that the (A),
> (B), and (C) sections are not joined by or's, hence, YouTube must satisfy
> *all three* requirements to make use of the exception."
>

References above to the DCMA were to the Digital Millennium Copyright Act,
which should have been abbreviated to DMCA. I found this information about
the DMCA to be useful:

http://www.copyright.gov/legislation/dmca.pdf

It says in this document with regard to "financial benefits" in Section 512
(c) of the DMCA that, if the provider has the right and ability to control
the infringing activity, it must not receive a financial benefit directly
attributable to the infringing activity.

The question is, whether Youtube has the right and ability to control the
infringing activity. What do you think?

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