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These guys have lost touch with any kind of rational state of mind.
It appears that the MPAA has jumped into a legal dispute that hits on a few different points, all of which are interesting, but the really crazy point is the fact that the crux of their argument is that merely embedding or linking (technically, the same thing) to infringing videos is infringement itself -- and someone setting up a site that lets people embed or link should also be guilty of infringement. This is, to put it mildly, crazy talk from an organization that still seems to have an institutional cluelessness about how the internet works. To be sure, there are a few different issues related to this case, which was really about porn company Flava Works suing the site MyVidster and its owner, Marques Gunter. MyVidster lets people link or embed videos from other sites. It did not host any of the content itself. In accordance with the DMCA's notice and takedown provisions, Gunter would take down any embeds or links when he received a notice. However, the judge said that the site lost its DMCA safe harbor provisions because he did not take any further action: specifically because he did not cut off repeat infringers:
"It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,"
Now, it is absolutely true the DMCA requires that a site have a policy for terminating repeat infringers. But it does not go so far as to say that they then need to proactively "investigate" content related to repeat infringers as the court stated. EFF and Public Knowledge filed amicus briefs pointing out how this is not clear at all, and is quite problematic, since sites don't quite know what is and what is not infringing. This is a big issue, because the sheer vagueness of the law leaves plenty of sites exposed -- and as we recently noted, the way the DMCA (stupidly) works, is that if you fail to meet each and every complex condition of the safe harbors, you can lose them all entirely. That's ridiculous, but that's how the law is set up.
Google and Facebook also weighed in on the case, bringing up some of the same points, but raising the bigger issue of the pure insanity that Flava Works (and the judge!) appear to think that an embed/link is the same thing as hosting the content yourself. This case is in the 7th Circuit, but over in the 9th Circuit, there is a perfectly reasonable and logical decision in one of the many Perfect 10 cases, which establishes the totally common sense "server test." Basically, it's this: is the content distributed from your server? No? Then you're not the one guilty of direct infringement. This makes sense because it's correct. Anyone with even an ounce of technological knowledge understands that embedding a video is not the same as hosting a video. So, that's what Google and Facebook explained to the appeals court.
So what did the MPAA in its luddite-soaked haze have to say about all of this? Yeah, it sarcastically dismisses common sense and launches itself headlong into crazy land by insisting that it's the folks who think the server test is reasonable who are out to lunch:
"Even assuming that Amazon.com’s novel 'server test' applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."
I realize that the MPAA isn't known for having any technological capability whatsoever, but it has to be said: this is just flat out wrong. Embedding does not directly infringe the performance right. They're linking to someone else's server entirely. That host may directly infringe the performance right, but the person who embeds/links to it cannot. Because they have no control over the work at all. They literally are writing an insanely short line of text (or, more likely, copying that tiny line of text) that literally just points your browser to some other server. That's it. When merely pointing someone to another server is seen as direct infringement of a performance right, we've got serious problems.
And it doesn't end there (of course). The MPAA also tries, again, to pretend that the DMCA requires proactive filtering. They complain that MyVidster:
... willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified.
Yes, the MPAA is trying to lie and back its way into a proactive requirement for sites to monitor by saying that failing to filter is "willfully blinding." That's wrong. It's obnoxiously wrong. It's the MPAA trying to rewrite the DMCA and add in SOPA filtering requirements on the fly, even though its lawyers already know this argument has failed over and over again. The MPAA just seems to believe if it keeps saying it, maybe it'll find a clueless court to agree.
This is what's so pitiful about the MPAA. When they lose, they don't realize they were wrong, they just keep arguing the same damn thing in court over and over again, and act shocked that anyone might argue otherwise, even though they've lost this argument in court over and over again.
Source: MPAA Just Won't Quit: Jumps Into Legal Dispute To Argue Links & Embeds Are Infringing
Definitely if Hollywood keeps up with what they're currently doing, their days are numbered.
GENEVA, Switzerland — Jimmy Wales has a message for Hollywood: You’re doomed, it won’t be piracy that kills you, and nobody will care.
The Wikipedia founder, delivering a keynote address at the Internet Society’s INET convention in Geneva, predicted that Hollywood will likely share the same fate as Encyclopedia Britannica, which shut down its print operation this year after selling just 3,000 copies last year.
“Hollywood will be destroyed and no one will notice,” Wales said. But it won’t be Wikipedia (or Encarta) that kills the moviemaking industry: ”Collaborative storytelling and filmmaking will do to Hollywood what Wikipedia did to Encyclopedia Britannica,” he said.
Wales hedged by saying predictions are easy — and he’s usually wrong. But he looks at a generation of kids growing up in a world of video and mastering editing software at a young age. His own 12-year-old daughter, Wales said, is already adept at iMovie and won a local award for a short film she made.
And just as Wikipedia has show that collaboration on the web is possible (despite the messiness, flame wars and turf battles found on Wikipedia Talk pages), the new generation will find ways to collaborate online to create movies to entertain themselves and their friends.
And, Wales says, they’ll do that with impressive special effects, CGI and even remote actors.
But telling a story and building a feature-length film collaboratively is much different and much harder than collectively adding verifiable facts to a Wikipedia entry. So it’s unlikely that Hollywood’s going to pay much attention to Wales’ prognostication. Which means if the next generation turns out to find away to creating the next Titanic on a $5,000 budget, Hollywood won’t even see the blow coming.
wired.com: Jimmy Wales to Hollywood: You’re Doomed (And Not Because of Piracy)
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