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from the so-long-and-thanks-for-all-the-fish? dept.
This piece of news over at Ars Technica may have some startling implications.
The Digital Millennium Copyright Act's so-called "safe harbor" defense to infringement is under fire from a paparazzi photo agency. A new court ruling says the defense may not always be available to websites that host content submitted by third parties.
A Livejournal site hosted messages of celebrities, and a paparazzi agency that owns some of those photos took exception. Since the site moderated the posts that appeared, the appeals court ruled that just shouting "safe harbour" is insufficient - the court should investigate the extent to which the moderators curated the input.
As the MPAA wrote in an amicus brief:
If the record supports Mavrix’s allegations that LiveJournal solicited and actively curated posts for the purpose of adding, rather than removing, content that was owned by third parties in order to draw traffic to its site, LiveJournal would not be entitled to summary judgment on the basis of the safe harbor...
It's hard to argue with that: a site that actively solicits and then posts content owned by others seems to fall afoul of current copyright legislation in the USA.
But I can't help thinking of the impact this may have on SoylentNews.... if left to stand, this ruling could make running a site such as SN a very tricky line to walk.
(Score: 4, Interesting) by VLM on Tuesday April 11 2017, @09:05PM (3 children)
This is one of those situations where whats strategically not talked about is probably very important.
no one titled "journalist" wants to talk about the first point the judges brought up in the opinion, which is the dude who ran the story was a LJ employee not a member of the DMCA general public safe harbor. This is critical because as per gamergate etc journalists are corrupt as hell as, apparently, are:
Etsy, Kickstarter, Pinterest, and Tumblr, in urging the appeals panel not to rule as it did,
so apparently etsy, KS, pintrest and tumblr are actively simulating grassroots users via paid employees and they are trying hard to distract the discussion away from that rather critical aspect of the case.
The dude being an employee is kinda important to the case, and its funny looking at "sorta main stream media" pooping itself over a threat to their model of astroturfing content. Its legally incredibly important that the mod was a paid employee of LJ not a random unrewarded shitposter like myself, because the DMCA only exempts general public not employees.
If as a member of the general public I uuencoded msdos 4.01 COMMAND.EXE and posted it, SN is totally off the hook once they delete it. But if ncommander as owner of the site willfully and intentionally put COMMAND.EXE in /var/www with the purpose of selling online ads to generate revenue while people downloaded that valuable warez, then as an agent of the company he would be in deep deep trouble and he gets no DMCA exemption being an agent of the company.
(Score: 2) by Scruffy Beard 2 on Tuesday April 11 2017, @09:23PM
Most of the moderators were volunteers, but LJ apparently gave them very specific guidelines, including times of work.
(Score: 2) by kaszz on Wednesday April 12 2017, @12:04AM (1 child)
What if SN saw your COMMAND.EXE post and did nothing unless asked to by copyright owner?
(Score: 2) by VLM on Wednesday April 12 2017, @02:16PM
What if SN ... did nothing unless asked to by copyright owner?
That's the definition of the safe harbor provision of the DMCA.
SN saw your COMMAND.EXE post
And that's almost the definition of the "red flag" test which LJ failed by posting in their equivalent of the sidebar that "here be copyright violations" and advice on violating copyright. Especially on SN it would be hard to argue "we" don't know that COMMAND.EXE is copyrighted software. That would fail both the subjective AND the objective test which is kinda impressive in its own level of fail. Especially if SN had a nexus or section named "torrents of copyrighted files and stuff" containing commentary on avoiding DMCA takedown notices when users intentionally violate copyright.