SoylentNews is people
SoylentNews
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: 2) by The Mighty Buzzard on Tuesday April 11 2017, @08:02PM (20 children)
Don't fret yourself none. We only moderate stories and you were never going to see anything infringing in them anyways.
My rights don't end where your fear begins.
(Score: 3, Interesting) by tibman on Tuesday April 11 2017, @08:15PM (19 children)
I think they are saying that if a user posts a comment that involves copyrighted material then SN would be in trouble because it moderates the content. In LJ's case the moderators were just volunteers (like SN). Checkout this snippet:
That means every site with comments is a step away from becoming 4chan. But hell, even 4chan has some moderation. What sites have zero moderation? Can't even think of one. Probably means Safe Harbor is unobtainable under that ruling.
SN won't survive on lurkers alone. Write comments.
(Score: 2, Insightful) by Anonymous Coward on Tuesday April 11 2017, @08:18PM (5 children)
What's the problem? 4chan has the most free speech of any site on the net.
We should strive to be more like them.
(Score: 2) by tibman on Tuesday April 11 2017, @08:34PM (4 children)
It's way harder to read at work : (
SN won't survive on lurkers alone. Write comments.
(Score: 2) by GungnirSniper on Tuesday April 11 2017, @11:10PM (3 children)
Use a shell and it will be fine.
Tips for better submissions to help our site grow. [soylentnews.org]
(Score: 2) by kaszz on Tuesday April 11 2017, @11:47PM (2 children)
What do you mean with shell? bash?
(Score: 2) by GungnirSniper on Wednesday April 12 2017, @05:04AM (1 child)
Lynx [wikipedia.org] Anything in a black-background shell must be work related to the business denizens of the office.
Tips for better submissions to help our site grow. [soylentnews.org]
(Score: 2) by kaszz on Wednesday April 12 2017, @05:55AM
Use glasses with builtin screen?
Whenever they are removed the screen locker activates.
(Score: 2) by LoRdTAW on Tuesday April 11 2017, @08:28PM (4 children)
No. But IANAL so take the following with a grain of salt.
Our comments are not reviewed and approved for posting by site moderators. We decide what to post and where to post it in the comments section. Afterwards, users can decide if they want to vote up/down the comment. Soylent comments are protected under safe harbor. If a user plagiarizes some content in a comment, soylent is protected by safe harbor so long as the offending content is removed.
Posted news articles are not protected because the user has no control over what is posted, the mods do. So if TMB posts a plagiarized article (unbeknownst to him) with no credit or links, then soylent can get in trouble if the content owner decides to take action.
(Score: 3, Informative) by VLM on Tuesday April 11 2017, @08:38PM
So if TMB posts a plagiarized article (unbeknownst to him) with no credit or links
I actually read the first ten pages of the judicial opinion and a better analogy would be if TMB were a paid employee of a site self describing itself as specializing in distribution of copyright violations and he posted a story that even the dumbest non-technical normie could tell was a violation like microsoft-property-(c)-windows-10-(tm).torrent as a story, and SN ran a shitton of ads on that torrent article making a pile of cash, then MS asked for a share of the ad revenue and SN said F you see you in court, because TMB is a member of the general public so you as a copyright owner can kiss my shiny metal DMCA ass, then, and only then, would SN get in trouble. Otherwise we're mostly safe, I think.
(Score: 2) by tibman on Tuesday April 11 2017, @08:41PM (2 children)
The issue wasn't with LJ blog owners posting copyrighted content. It was users commenting with copyrighted content. The volunteer moderators removed the "offending content" after they were told but Mavrix is arguing that because they were volunteers who originally approved the comments then it removes Safe Harbor status from livejournal. The court is now trying to figure out how much influence moderators have in the process of promoting (copyrighted?) content.
Someone posts copyrighted material to SN. Moderators mod it up to get higher visibility. Copyright owner says take it down. SN admin takes it down. Copyright owner sues because it never should have been moderated up in the first place.
SN won't survive on lurkers alone. Write comments.
(Score: 2) by Scruffy Beard 2 on Tuesday April 11 2017, @09:16PM
The ruling deals with moderated postings: every post goes through a moderator; with only about 30% being approved. The moderators not only moderate for content, but posts are required to include images; rather than just linking to third-party sites.
The appeal court said that the lower court erred in dismissing the case with a summary judgement. It now goes back to the lower court for a re-hearing.
Source:LiveJournal ONTD loses Copyright Safe Harbor from content moderation? #wtfu (Leonard French) [youtube.com] (1h9min38seconds)
(Score: 2) by LoRdTAW on Wednesday April 12 2017, @03:54PM
If we are talking about a comment then no because no moderator intervention is needed to approve the actual post. It is posted directly by the user. We can only vote it up/down to change it's score. We can't vote to delete a post or hide it permanently. Only the soylent crew has that ability.
Article submissions are an example where we the users have no control. We can only submit content and then it's up to the editors to check and post them. That is where the safe harbor act ends.
(Score: 2) by The Mighty Buzzard on Tuesday April 11 2017, @08:50PM (7 children)
Right but what they're calling moderation is a hell of a lot different than what we call moderation. Theirs actually control what's seen and what's not. Ours do not have that power and are in no way, shape, or form staff. Every registered user with over a month of time on the site gets moderator points here, so it's not even a volunteer thing.
My rights don't end where your fear begins.
(Score: 2) by tibman on Tuesday April 11 2017, @09:28PM (6 children)
Their volunteers are not staff in any way, shape, or form either. SN's moderation is different yes, but not so different that it isn't moderation. Ours is more granular. Comments can be disappeared or promoted to higher visibility. Obviously SN is different than LJ but not so different that this judgement wouldn't apply, imo.
SN won't survive on lurkers alone. Write comments.
(Score: 2) by The Mighty Buzzard on Tuesday April 11 2017, @09:38PM (2 children)
Nah, if our moderators could actually disappear a comment it might be an issue. They can't. Any user at any time can see any comment. If they choose not to based on community rating of that comment, that's their choice and has nothing to do with the comment being visible to the wide world.
My rights don't end where your fear begins.
(Score: 2) by tibman on Tuesday April 11 2017, @10:40PM (1 child)
Visibility does matter. If it didn't matter then SN wouldn't need(want?) a moderation system. The moderation systems entire existence is to promote good content and hide bad content. More nuanced than LJs all or nothing approach, for sure.
SN won't survive on lurkers alone. Write comments.
(Score: 2) by The Mighty Buzzard on Tuesday April 11 2017, @10:54PM
Yup, and it's nuance I'm prepared to fully argue for hiding behind.
My rights don't end where your fear begins.
(Score: 2) by https on Tuesday April 11 2017, @09:52PM (2 children)
Anyone and everyone can set their threshold to whatever the fuck they want, including +5 or -1. Heck, if I was feeling whimsical, I could set all "Funny" moderations to count as -6 and "Offtopic" to +6. Your notion of "disappeared" is probably wrong and at best irrelevant. The comments are still there.
Offended and laughing about it.
(Score: 2) by tibman on Tuesday April 11 2017, @10:38PM (1 child)
If it was irrelevant than why do people care that they are modded down? Visibility matters.
SN won't survive on lurkers alone. Write comments.
(Score: 2) by urza9814 on Wednesday April 12 2017, @03:55PM
It's irrelevant in this context to the site owner because they aren't actually removing any content. They aren't actually changing visibility. Moderation on SN is a purely additive process -- other users add extra information to a post, which gets sent to the viewer, who can configure their reader to interpret that additional information in whatever way they choose.
The information *appears to* disappear, because that's what most users want. But it doesn't. It only gets more tags. The SN "moderation" system could more accurately be described as a "reaction" system or even "instant tagged replies". The moderation aspect is done by the end user, not site owners or staff or even volunteers. I think that IS actually a significant different. Moderators CAN'T hide a post here, no matter what they do. You might moderate a post as "Troll", intending to hide it, and instead it gets promoted because I've got a +6 modifier on Troll and there's not a damn thing you can do about it. So it would be pretty difficult to argue both that SN is responsible for the actions of moderators (who they aren't affiliated with) AND that those moderators are actually capable of controlling what is posted on this site.
Another good comparison for SN moderation is ratings on reviews. If you view product reviews on Amazon, it often asks if a specific review was "Helpful". Then when other users view that product, the most "helpful" reviews are displayed first. Do those ratings also violate safe harbor by using user content to sort user content? I don't see how...
(Score: 3, Insightful) by jmorris on Tuesday April 11 2017, @08:15PM (2 children)
In the old world six companies control pretty much every movie, tv show, magazine and book, establishing and maintaining a unified Narrative was and is easy. In the Internet world there are many and control of a Narrative is difficult. One of these worlds has a future and one does not. Which one survives is still a very live question, this case is but one attempt to kill the new and save the old. Active moderation under strict liability for any misses is not financially viable and any large community with zero moderation becomes 4chan and not viable. They hope to make those the only two choices available and win.
(Score: 2) by kaszz on Tuesday April 11 2017, @11:55PM
Moderation can be enabled on external basis by the same means as crypto certs are discarded. Every user posts a signed list of posts identifiers they think are junk. Every reader configures their reader software to use lists from users they think have a good judgement. Viola, moderation without the site itself participating has been accomplished.
(lists are kept in a separate forum to be posted and read by machine software only)
(Score: 2) by urza9814 on Wednesday April 12 2017, @04:05PM
No. It means *bad* moderation is not viable.
It means that if you are actively going and checking every post and deciding exactly what you want to display on your site, then yes, you are responsible for what you choose to display. That seems pretty basic, and I don't really understand why it's in dispute here.
But that doesn't prohibit a system like SN uses, or how Amazon.com moderates their product reviews. You don't hide anything (unless it's reported and found to violate whatever terms, etc, etc... -- moderating only flagged posts is substantially different than moderating every single submission.) Instead, you give users extra information and provide a system where they can use that information to perform any moderation themselves. Or even better you could put together a "web of trust" type system. The point is that if you have a single provider totally controlling everything that gets posted, then it all gets treated as though it was posted by that single provider. If the users themselves are in control, then the company isn't liable for merely supporting their communication.
This decision is actually a further strike AGAINST the ability of major content providers to control the narrative. They can remove comments and therefore reduce content, or they can give up all hope of controlling the narrative within those comments. But they can no longer attempt to control the narrative within those comments without exposing themselves to liability for whatever gets posted.
(Score: 4, Informative) by LoRdTAW on Tuesday April 11 2017, @08:15PM
This does not sound like that big a deal.
If your site allows users to manage and post their own content, such as youtube, then the safe harbor applies. However, if your site has a policy that the content must first be reviewed and approved by a moderator then the safe harbor might not apply.
It makes sense as once the user has no control over their content and the site assumes responsibility for posting content, the burden of ensuring all licensing and copyrights are respected is shifted to the site.
(Score: 4, Insightful) by VLM on Tuesday April 11 2017, @08:20PM (2 children)
I am not a lawyer but I seem to get mixed up in legal things a lot. Also I'm willing to read and unlike the "journalists" involved I have no dog in the fight. So here goes.
I can't get the copy/paste functionality working so deal with it.
Page 4 explains that the leader of the mod team is an employee of LJ. That does not seem to be a problem at SN right now. Its hard to claim a member of the general public posted something to your discussion board when the guy who approved it is your own paid employee and there is no DMCA safe harbor for, perhaps, a crazy web developer uploading stolen code. If the logo for SN were stolen and uploaded as a part of the page design by a paid SN employee, then we would be F'd.
Page 6 explains how the community mod rules explicitly require posts to be copyright violations and page 7 continues the discussion of the complicated relationship of who rats out LJ for DMCA violations and who is easier to victimize. If SN explicitly on the submissions page told submitters that we're strictly a warez and codez discussion board, then we're F'd.
Page 7 shows the judges get excited over the plan to run ads making a profit off self described illegal activity. Its not just having an employee in charge of optimizing copyright violations but they plan to make money off it... Clearly this is making money off copyright violations and the victim is due their share as damages. If SN made money off ads on pages of illegal content then if the owner asked for their share of the money, we'd be F'd.
Page 8 goes into labor law topics such as are the other mods unpaid employees of the supervisor who is paid or merely contractors or volunteers. LJ came pretty close to getting slammed for labor law violations but they seem barely legal. I don't think this is an SN issue unless you guys are violating intern laws or maybe you can just categorize them as groupies. I mean, as a prolific SN poster I get lots of steamy groupie sex? Anyway I think this is not an issue that would result in SN getting F'd.
Page 9 discusses how it should have been rather obvious to either a member of the general public or a paid employee acting as agent that a series of pix with a watermark of someone elses website are almost certainly copyright violations. So it being very unclear to the general public if this line of C code is a violation:
time++;
SN is probably off the hook. However is SN starts posting stories like "mods please approve this as the best Microsoft Windows 10 (tm) download" and a mod hired by SN approves the best windows 10 torrent download, then SN is probably F'd.
Then the opinion degenerates into about 20 pages of backstory and historical law which I admit I skimmed.
if left to stand, this ruling could make running a site such as SN a very tricky line to walk.
Not really. If you want to run a warez site, don't claim "general public posting safe harbor" if its actually an employee doing the posting (whoopsie). If you want to run a warez site don't make a profit by running ads on illegal content. If you don't want to run a warez site don't put stuff on the public submission page stating "We accept illegal content only". If someone uploads ridiculously obvious warez such as a torrent for a windows 10 (tm) download, then delete it, don't post it. This just isn't rocket surgery.
(Score: 2) by The Mighty Buzzard on Tuesday April 11 2017, @08:57PM
Actually, as a news organization, if we wrote an article to go along with it comparing and contrasting that vs. the official version we'd be free and clear. You can print pretty much anything if it's newsworthy.
My rights don't end where your fear begins.
(Score: 0) by Anonymous Coward on Tuesday April 11 2017, @10:51PM
I am not a lawyer but I seem to get mixed up in legal things a lot
So, criminal, then? Somehow I am not surprised! (Illinois Nazis!)
(Score: 0) by Anonymous Coward on Tuesday April 11 2017, @08:31PM (2 children)
I am not a lawyer, and advice on the internet from stranger is worth what you pay for it. That being said...
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.
Why?
To begin with, SN doesn't engage itself in obviously illegal behavior. There is an argument for copyright infringement, but quotes from posts are linked-back-to and cited, so I doubt anybody would really engage in a lawsuit for such a small function (plus case law in the US about how small snippets of text are considered fair use, as I recall). So the question of "Safe Harbor" doesn't even apply.
However, assuming there was illegal content, I'll note from the summary that, "the appeals court ruled that just shouting 'safe harbour' is insufficient - the court should investigate the extent to which the moderators curated the input." This is not saying that it is not legal, only that it requires a closer look. A lightly-moderate venue like SN would be much closer to safe harbor than not, I would think.
(Score: 2) by tangomargarine on Tuesday April 11 2017, @08:45PM (1 child)
Plus it hooks into the argument about whether linking to illegal content is the same as uploading it yourself, which there may still be some dumb rulings on.
I would hope that this threat would only apply to "gated sites" that don't publish content submitted by users before someone reviews it (which we here would fall under...for articles themselves but not comments) vs. like forums where anybody can start a thread and post without delay.
"Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
(Score: 2) by kaszz on Wednesday April 12 2017, @12:07AM
I think the greater problem is that the powers that are wants to own and kill the free internet by any means possible. And these kinds of decision is like cooking the frog a little bit hotter or moving the demarcation like just a little bit closer. Death by thousands of cuts.
(Score: 3, Insightful) by DannyB on Tuesday April 11 2017, @08:50PM (2 children)
AFAIK, SN doesn't allow file uploads. So that's good. But it might be possible to merely link to a site that itself has infringing material. And the **AA holes would like linking to be copyright infringement.
One could possibly link to an image that is copyright infringing which might really get them riled up.
But it is possible to infringe copyright merely with text.
In the above text, whose copyright is infringed, if any? Would it be fair use because it is transformative? It doesn't damage the market value of any work. It is de minimus (only names of characters are used, as well as a culturally well known four word English phrase translated from Vulcan).
Given such complex legal questions, can a site be expected to even know whether something is infringing or not? Hollywood cannot even decide if a work is infringing or not. The MPAA-holes have taken down their own videos with their left hand which didn't know that the right hand of marketing had uploaded those same videos. Or the RIAA has taken down music uploaded for promotional reasons by the artists with authorization to do so.
If supposed experts in copyright can't even get simple copyright issues right, how can a site like SN be reasonably expected to get complex questions right? The **AA-holes are also required to analyze and consider fair use factors first. And swear under penalty of perjury on the DMCA complaint.
The anti vax hysteria didn't stop, it just died down.
(Score: 2) by mcgrew on Wednesday April 12 2017, @04:49PM (1 child)
You seem to forget that originally, copyright only applied to the written word and sheet music. It still applies to the written word. Paste an Isaac simov story (Except Youth, his only work that's in the public domain) and his widow and kids will be going after you.
BUT, S/N's site managers don't moderate; that is, content is not removed, just scored by users.
Carbon, The only element in the known universe to ever gain sentience
(Score: 2) by DannyB on Wednesday April 12 2017, @05:08PM
I understand the different meanings of the word moderate here on SN. But the **AA holes will deliberately conflate the meanings. The argument will be that if users "moderate" the content, then SN should lose safe harbor. Hopefully this won't fly. But don't count on it. The world is spiraling out of control as we watch.
The anti vax hysteria didn't stop, it just died down.
(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.