Music industry threats to safe harbor? - Wikimedia-l

19 Dec 2016

What you posted there regards contract terms between the artist and
Youtube. That's between them to fight out. If they don't like
Youtube's
terms, they can take their stuff elsewhere.

DMCA safe harbor has nothing to do with contracts. It means that,
if you
run an interactive web site (essentially, anything where users are
allowed
to post stuff), you can't be held liable if one of your users posts
copyrighted material. The user still can be, but you, as the site
operator,
cannot.

In exchange, you must provide a way that a copyright holder can
contact
you, using a standard method, and tell you that they've found
material that
infringes their copyright. You must then take that material down
(within a
certain period, I think ten days) and provide notice to the user that
you've done so. The user can then either file a "counter notice"
if they
believe the material is not infringing, which you'd send back to the
copyright holder if they choose to do so, or drop it, in which
case the
material stays gone. If a counter notice is filed, the copyright
holder can
at that time either take the matter up in court directly with the
user, or
drop it. If they don't file in court after a counter notice, you can
automatically reinstate the material after a certain period of
time. If the
DMCA notice was malicious or fraudulent, the safe harbor provision
also
establishes liability against the person or entity who filed it.
But as
long as you file those procedures, you, as the site operator, are
immune
from liability for either the material being present to start with
or for
it being taken down.

Without that protection, no one in their right mind would operate an
interactive web site, at least not in the US. It protects
everything from
classic car hobbyist forums operated by a few people at their own
cost, to
sites like Youtube and Facebook. None of those would be possible
without
it. Or, at the very least, they would have to be operated from
countries
which are, shall we say, much more lax on copyright enforcement.
That's bad
for everyone, including the copyright holders--they no longer
would have an
effective method of getting infringements taken down.

Since Wikimedia is DMCA-compliant, that means that, say, AP or
Getty can't
sue Wikimedia if a user uploads a bunch of their images to
Commons. They
would have to find and sue that user. And of course, they could
file DMCA
requests to have their stuff removed. But since WMF is much easier
to find
and has much deeper pockets, if they had the option of suing WMF, I
guarantee you that they would. The only thing that stops them from
that is
safe harbor.

That, and Section 230 of the CDA (which excludes liability from site
operators for other types of illegal conduct like threats) are,
without
exaggeration, the very reason that interactive web services can
exist at
all. Without those, you'd be accepting liability for anything a
user of
your site might choose to do. You'd have to be insane to do that.

Todd

On Mon, Dec 19, 2016 at 1:36 PM, Lilburne
<lilburne@tygers-of-wrath.net <mailto:lilburne@tygers-of-wrath.net>>
wrote:

> On 19/12/2016 16:45, David Gerard wrote:
>
>> For various reasons * I follow music industry news. One drum
the record
>> industry has been beating *hard* in the past year is attempts
to reduce
>> the
>> DMCA "safe harbor" provisions in order to squeeze more money
from YouTube.
>> It's been a running theme through 2016.
>>
>>
> Oh dear! If this gets traction poor little Google, won't be able
to run
> their protection racket any longer. It is so worrying that a
little cellist
> might bring a $400 billion company to its knees.
>
> https://www.theguardian.com/technology/2015/jan/27/zoe-keati
<https://www.theguardian.com/technology/2015/jan/27/zoe-keati>
> ng-youtube-google-music
>
>
>
>
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