back to article US court decision will destroy the internet, roar Google, Facebook et al

Internet giants Google, Facebook and a wide range of organizations from Pinterest to Kickstarter to Wikimedia have responded furiously to a recent decision by the US Ninth Circuit Court of Appeals that could have huge liability implications for online companies. "This has already created tremendous uncertainty in the online …

  1. Anonymous Coward
    Stop

    You're twisting words El Reg...

    From this article: "Referring to the "safe harbor" provision of the Digital Millennium Copyright Act (DMCA) – which means internet companies are liable for what their users post online using their services so long as they respond to takedown requests from copyright holders".

    That looked really out of place to me. So if you check the referred article you read something different (as I suspected): "In the first – Mavrix Photographs v LiveJournal – a fundamental piece of online liability is at stake, namely: should online publishers be held liable for copyrighted material on a moderated site?".

    If you want a solid argument then at least present the correct facts to us.

    1. Notas Badoff

      Re: You're twisting words El Reg...

      TBH I thought the problem with the statement was the missing word:

      .... which means internet companies are NOT liable for what their users post online ...

      Or did I double-ROT13 my mind's understanding (again)

      1. VinceH Silver badge
        Trollface

        Re: You're twisting words El Reg...

        Yes, the problem is the missing "not"

        Perhaps the American tendency to drop "not" in phrases such as "couldn't care less" (to make it "could care less") is spreading to other parts of the sentence. 8)

      2. kierenmccarthy

        Re: You're twisting words El Reg...

        Sorry - pure brain fart.

        I, of course, meant NOT liable.

        Thanks for spotting - will get changed now

        Kieren

    2. Ian Michael Gumby Silver badge
      Boffin

      @ShelLuser ... Re: You're twisting words El Reg...

      There isn't much distinction between a moderated site and FB or Google.

      The one argument is that a moderator should be able to tell if an item is copyright protected or not. Therefore they should be held liable.

      If true, then you have to look at Google and FB.

      The interesting thing is that both Google and FB can automate the investigation of material on their web site and use AI to determine if something is copyright protected. Of course there are fair use exceptions which would make something interesting.

      For example... if you had a web page that was dedicated to the Tet Offensive and you have a picture on your site and you credit the photographer, talk about his story and about the significance of the shot, Are you breaking copyright law? (That was rhetorical. No you are not.) However if you took a video clip and are showing it on YouTube... you are breaking the law. (Assuming that your clip is pulled from a movie or tv show.)

      But the point remains. Google does have the tech to be able to identify and stop a lot of the abuse and they need to implement it to remain compliant with the DCMA.

      While I think the 9th is full of loony toons, They are right on this one

  2. Marketing Hack Silver badge
    Meh

    In general, this approach sounds like a good idea.

    It is going to slow the growth of content posting on the internet, and slow the businesses of some social media companies some, but in general a system that is more friendly to copyright holders would be a good idea. Posting something that a reasonable person would be able to tell is copyrighted/protected should not be allowed.

    1. edge_e
      Holmes

      Re: In general, this approach sounds like a good idea.

      When those with expertise get it so wrong,

      https://www.eff.org/press/releases/important-win-fair-use-dancing-baby-lawsuit

      what hope does your reasonable person have ?

      Even if a reasonable person could tell an infringing item if they saw it, how many reasonable people should you have to employ to check?

      http://tubularinsights.com/hours-minute-uploaded-youtube/

      1. Anonymous Coward
        Anonymous Coward

        Re: In general, this approach sounds like a good idea.

        "Even if a reasonable person could tell an infringing item if they saw it, how many reasonable people should you have to employ to check?"

        As many as it takes.

        If a business cannot cope with scale then it shouldn't scale.

    2. a_yank_lurker Silver badge

      Re: In general, this approach sounds like a good idea.

      One problem that no one has dealt with. I have a set of photos from a professional photographer complete with watermark. The photographer has given his clients permission for non-commercial use of the photos in writing. Now if I post one of the photos online on my non-commercial page/site, say FB, I have permission to do so. However, FB has no idea if I have been granted permission to do so. More specifically for the shysters how would anyone know a priori what permissions I have granted? The current regime removes the host from having to play guessing games over copyrighted as to what permissions have been granted to me.

    3. Daggerchild Silver badge

      Re: In general, this approach sounds like a good idea.

      "Posting something that a reasonable person would be able to tell is copyrighted/protected should not be allowed."

      Yes, but, have you any idea how few reasonable people there are? I'm not entirely joking.

      1. Richard 12 Silver badge

        No reasonable person can ever know if I have permission

        I take a photo and hand it to Person A and tell them "You may post this on Facebook, but not anywhere else"

        They post it on Facebook. This is ok.

        They post it in LiveJournal. This is not ok and I can take legal action.

        How can either of these places know what I told A?

        1. Charles 9 Silver badge

          Re: No reasonable person can ever know if I have permission

          Attach a permissions clause to the EXIF?

          1. bombastic bob Silver badge
            Unhappy

            Re: No reasonable person can ever know if I have permission

            "Attach a permissions clause to the EXIF?"

            oh, my various dieties, NO! let's not go there, ok? we dont' want some kind of "attach legalese" requirements on intarweb content. What's next, "pre-coitus" legal documents to legally ensure you're not raping a girl before having sex with her? No, wait...

            there are TOO MANY LAWYERS already. last thing we need to do is EMPOWER them even MORE.

            1. Charles 9 Silver badge

              Re: No reasonable person can ever know if I have permission

              "oh, my various dieties, NO! let's not go there, ok? we dont' want some kind of "attach legalese" requirements on intarweb content."

              Please, you do that with real-world content (attach a release to the documents or whatever). Why not here?

              And as much as people hate lawyers, would you prefer the alternative of having to mine your way through the laws of the land yourself? Because then lawyers become a lot like democracy: bad as they are, they're still better than the alternatives...

  3. edge_e
    Facepalm

    Not sure what it means?

    "undermine the interests of copyright owners by thwarting efforts that providers might otherwise make to try to identify and block infringing material that users submit for posting." Yeah, we're not sure what that means, either.

    I'm pretty sure they mean that if this judgment stands, a site that current performs basic checks to see if user are posting infringing items may decide not to make these checks at all to avoid liability for missing something.

  4. Charles 9 Silver badge

    It wasn't mentioned specifically, but isn't one of the argument that, because the text of the Act doesn't specifically cater to the actions in question, that the Act must therefore be amended and that the responsibility for doing that doesn't fall to the Courts (who are supposed to interpret the law, not make it) but to Congress? What's the argument for and against such an approach?

  5. Gene Cash Silver badge

    Old hat

    Most of this is what EFF, Stallman, et al warned everyone about, over 20 years ago when the DMCA was first adopted.

    I'm glad see it finally biting the big guys finally, not just the little folk. I hope it stings.

  6. Mark 110

    Takedown doesn't work

    Isn't the crrux of this that takedown has failed. Having the thing taken down doesn't get the copyright holder paid for the use of the content before it got taken down.

    Shouldn't the law read more along the lines of there being clear civil penalties for publishing copyright infringing content. Damages commensurate with expected reasonable earnings for said infringement.

    It would need to be very clearly clarified (sic) who is infringing, and therefore liable:

    - the service provider (E.g. Facebook)

    - the user (E.g. Tom, Dick, Harry, Theresa, Donna, Hortense) using the service

    The copyright holder would like it to be the big corporate - easier to collect.

    The big corporate would like it to be the user - so they can not give fcuk.

    Do we end up with a scenario (a la Pirate Bay) where ISPs are required to block Facebook as it distributes illegal content?

    1. bazza Silver badge

      Re: Takedown doesn't work

      Yep, that's about the size of it.

      It all comes back to the social networks not wanting to know who their users actually are. They make a lot of money out of users posting content that, really, they shouldn't. Users only post it in the first place because they know that most of the time they can get away with it, even for stuff that is criminally illegal (harassment on Twitter, terrorist material, paedophilia), not merely copyrighted.

      If the social networks made users hand over proof of legal i.d. (for example through a financial transaction), then a whole lot of illegal and copyrighted material simply wouldn't be posted in the first place, thus removing the bulk of the problem. However they know that a lot of people just won't bother using the networks in the first place. Pay Facebook for the privilege of them knowing from exactly who they're slurping? No thanks. And then their business goes away. The free to use spontaneity of it matters a lot.

      However, if they stopped slurping, and charged a small fee (like WhatsApp used to), actually offered a good service, it might work. It might be a better option than actually being held responsible for the illegal and copyrighted material users post...

    2. eldakka Silver badge

      Re: Takedown doesn't work

      Isn't the crrux of this that takedown has failed. Having the thing taken down doesn't get the copyright holder paid for the use of the content before it got taken down.

      That is one of the issues. However, IMO the bigger issue is there there are no penalties for submitting false DMCA takedown requests.

      For example, many people use DMCA notices to try and take down trademark-related content, which is a false DMCA request because the DMCA only covers copyright, not trademarks.

      DMCA's are used to take down content that the issuer just doesn't like.

      DMCA requests are issued by people (or organisations) who neither own or are agents of those who do own the copyrights. For example, WB has been using DMCAs to get "happy birthday" taken down, even tho WB never, ever, owned the copyrights to the lyrics of happy birthday.

      Notices are sent without any verification that the content is indeed infringing, for example, DMCA's are sent over files named Spaceballs.wmv, without anyone ever viewing the content to see if it is, in fact, the Spaceballs movie.

      As the article itlsef notes, Google recives nearly 3 million a day, and:

      Google recently estimated that 99.95 per cent of the requests it receives don't correlate to an actual URL – they are automated efforts to pre-emptively prevent copyright infringement.
      DMCA requests are required to specify, exactly, what is to be taken down, the URL, not "you have on your site a copy of Spaceballs, remove it".

      There should be criminal penalties for submitting false DMCA requests - if you don't own the copyright, go to jail, if the content isn't actually infringing, e.g. it's only a file called spaceballs, it's not the actual movie - go to jail.

      1. LDS Silver badge

        "DMCA requests are required to specify, exactly, what is to be taken down"

        And that, as pointed out in a previous Register article, is another issue because turned DMCA into a a whack-a-mole game, from which Google & C. got an advantage - so the copyright business started the "carpet bombing" approach.. Of course, this is a sign the current system doesn't work.

        Yet, if I were Google & C., I would be worried the sources for "high quality contents" may dry as soon as those creating it see them stolen as soon as they are ready. I would like to know what would happen if someone published all Google IP and gathered data....

    3. DropBear Silver badge

      Re: Takedown doesn't work

      "Shouldn't the law read more along the lines of there being clear civil penalties for publishing copyright infringing content. Damages commensurate with expected reasonable earnings for said infringement."

      NO.

      It should not.

      Not before asserting one single copyright takedown claim in error results in many years of prison sentence for the claimant and years of barring from making any further claims for his business.

      1. Charles 9 Silver badge

        Re: Takedown doesn't work

        "Not before asserting one single copyright takedown claim in error results in many years of prison sentence for the claimant and years of barring from making any further claims for his business."

        No, because it could've been an HONEST mistake. Say it LOOKs infringing but it turns out it's not because it's not the original content but, say, cosplayers in masks acting out.

        The REAL real problem is that tracking copyright use is not a black-and-white issue but an infinitely-shifting murk of gray that differs from instance to instance.

  7. Anonymous Coward
    Anonymous Coward

    If only there was a 3rd way, which stopped copyright from censoring the internet, while ALSO destroying facebook's business model.

    1. Charles 9 Silver badge

      And if it's proven that the way Facebook designed its business model makes the whole thing part and parcel, meaning there IS no third option?

  8. GidaBrasti

    double edged sword

    "a system that is more friendly to copyright holders" although may not sound bad initially, will in the end favour existing media-barons as the ones having the biggest arsenal of copyrighted material.

    This will turn the interwebs into a traditional news outlet that is so much loved by everybody.

    OTOH, the existing mentality that everything is free for grabs does not give anyone its rightful piece of the pie.

    Tricky...

  9. VicMortimer

    I don't know, sounds like a pretty good approach to me. It should do a good job discouraging Google et al from trying to filter for copyrights, and that's a major win.

    If Google et al want to do something useful, they should start referring all of those bogus DMCA takedown notices for prosecution, because those things are certified to be correct under penalty of perjury. Make a deal with the prosecutors that if they'll actually go after a few of the bogus DMCA filers, Google won't start submitting a million or so requests a day for prosecution.

  10. Malcolm Weir Silver badge

    What about abuse of fair use?

    One thing that people are missing is that there *are* circumstances where posting of copyrighted material is permissible: the "Fair Use" exemptions. You (for some value of you) may not like them, and you (for some other value of you) may disagree whether apply in a given circumstance, but who, precisely, get's to decide if the posting of something, say, unflattering _for the purposes of editorial content_ falls into one side or the other?

    Consider, for example, a written work created by someone (say, a "letter"), that is then published on a website in order to show that the author was a bit of a plonker. The publishing is clearly in breach of the author's simple copyright. But it's also (likely) fair use. If the argument (that a moderator has a duty to enforce copyright) prevails, then there will be a chilling effect, as anyone issuing threats (legal or otherwise) simply has to slap a "(C) A Litigious Bastard" statement on each page, and they're shielded from their actions...

    1. Tannin

      Re: What about abuse of fair use?

      Yes. And it gets more complicated than that because "fair use" is the American rule, where other countries have other rules. here in Oz, for example, we have "fair dealing" which is more restrictive than US "fair use" in some respects, less restrictive in otrhers. So there are lots of different "fair-somethingorother" rules, and even where you have the same rules, they are often interpreted in different ways in different places.

      It's a mess.

      1. Solarflare

        Re: What about abuse of fair use?

        Actually, it's not as complicated as that. American law is the law of the world, don't you know?

        1. Charles 9 Silver badge

          Re: What about abuse of fair use?

          So what happens when an American abuses content from Doctor Who, an English work, while on vacation somewhere that doesn't respect either country's copyrights (like Kuwait, NOT signatory to the Berne Convention)?

          1. bombastic bob Silver badge

            Re: What about abuse of fair use?

            RE: what happens when an American abuses copyright on an English work...

            I think there are treaties with respect to copyrights in foreign countries. but take a look at the list of copyrights at the ends of movies nowadays, and you can see a bunch of legalese terms, key words, and tricky phrases with specifics for specific places on the planet.

            (edit: a U.S. citizen can be held liable for U.S. laws broken while overseas - one clear example of that is what's known as 'sex tourism' and I'll leave it at that)

            one of the more interesting 'fair use' exceptions (in the USA anyway) is PARODY. I did a funny parody of Kim Jong Un lookling like Cartman (respect my authoritah) using gimp to color in his suit so that it's red, and stuck a 'cartman' cap on his head (with additional cleanup needed because of his redonkulous hairstyle). Implications obvious. yet the thing I did is FUNNY. The photo was credited to fox news naturally, where it came from, and so forth. Parody. A clear 'fair use' exception under the USA copyright laws.

  11. Herby Silver badge

    Ninth circuit court??

    I'm not holding my breath. These guys like to be "leaders" in new legal ideas, made up of whole cloth and thin air. While something needs to be done, I'm not exactly sure that the court (and especially the ninth circuit) is the place to do it.

    Then again, i'm not holding out for legislative solution that actually works either. There are a BUNCH of vested interests here, and they have many conflicting ideas on what is "proper" for their lobbying group. Whatever solution comes out of this, it will taste bad for ALL those involved. Hopefully the bad taste is small and equal for the participants (we can only hope).

  12. Anonymous Coward
    Anonymous Coward

    To be fair, even on a moderated site it's basically impossible at times to know whether an image is copyrighted or not. I have twice been called into the boss' boss' boss' office to explain why we were being hit with a several thousand dollar lawsuit over a picture a teacher posted on their website. I'll say here what I said then: The simple fact of the matter is that even as a moderator unless you happen to recognize the image somewhere or it has an obvious watermark there is no way to tell if it's copyrighted or if the person uploading it owns it. Hence why DMCA, widely abused as it is, is important. Give me something better and I'll take it, but I can't imagine a system that would do the job without being open to horrible levels of abuse.

    1. The First Dave Silver badge

      @A.C.

      To be fair, this entire story is about pictures with a clear copyright watermark visible on them...

      As has been pointed out, that may not be the full story, but certainly a red-flag to any reasonable person.

  13. Anonymous Coward
    Anonymous Coward

    Winners all around!!!

    In the legal fraternity.

    1. e^iπ+1=0

      Re: Winners all around!!!

      "In the legal fraternity."

      Uh, I think you mean trebles.

  14. Maty

    Sometimes it's blatant

    For example, I've found entire books photocopied and sold on sites like scribd.com. We're talking technical books that sell for around £40 in a bookshop or on Amazon.

    Do the moderators on the site really believe that somebody in Albania has been given permission to sell it online for £2? Or does the fact that they get a cut of every book sold induce a degree of wilful blindness?

  15. tiggity Silver badge

    Watermarks

    It depends on the watermark what interpretation a reviewer may give (we are talking unpaid volunteers, not copyright, publishing experts, chances are they are mainly reviewing to stop trolling, offensive stuff, maybe fact checking, but complexities of copyright well beyond their (no) pay grade)

    If someone sees a "(C) AN Other" type of watermark, they may well assume that is doing the job of showing copyright and that's great, they will have zero clue as to whether image is freely distributable for non profit use as long as watermark there, or whether it was added as a "get off my photos" type of thing.

    Image rights / fees etc are a thing best left to the experts..

    SO is currently part of a small group of academics working on a book, to make things simple, as many images as possible are those SO & other team members have produced.

    However a big chunk of the upfront funding for the book is earmarked for images that will be included that are produced by other people and a specialist company is dealing with sorting out all the rights & fees. Rights specialists were mandated as part of teh whole book deal as publishers had experience of authors doing DIY rights handling and getting it badly wrong so publishers want legal liabilities covered, so experts required (as liabilities for getting it right falls on teh rights specialist company)

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