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To Live Outside The Law You Must Be Honest

It has become standard operating procedure for companies that want to distribute content online to ask forgiveness instead of permission. The companies themselves pitch this as innovation, then tell rights-holders to file DMCA takedown notices – often by the thousands. By then, of course, they have far more negotiating leverage. YouTube’s offer to the media business could be summarized, in geek terminology, as ‘all your video are belong to us’ – so you might as well take what we give you.

The obvious problem is this: How much can you trust a company that deliberately attempts to profit from the work of others without providing any compensation? (Whether YouTube’s behavior was legal under the DMCA will be determined in court, but emails that came out in Viacom’s lawsuit make it clear that the company’s employees didn’t think they were going to get rich on cat videos.) Ironically, most online streaming services are actually less transparent than major labels when it comes to royalty accounting – and that’s saying something.

So it’s not all that surprising to hear that the online music service Grooveshark has just been sued by EMI – the only major music company it actually had a deal with. (Universal’s suit against Grooveshark is ongoing, and Sony and Warner recently filed suits of their own.) In its complaint, EMI Publishing – the division of EMI that controls the copyrights to songs, not recordings – that it has “made not a single royalty payment to EMI, nor provided a single accounting statement.” Ouch.

This fits with Grooveshark’s strategy – “achieving all this growth without paying a dime to any of the labels” – as outlined by chariman Sina Simantob in a December 2009 email. Much as musicians who want their work removed from the service have to repeatedly file DMCA takedown notices for the same work, perhaps companies simply have to sue in order to get paid. (Grooveshark told The New York Times that this was a contract dispute it expected to resolve.) Sadly, this would hardly be unprecedented in the music business.

If I had to guess, I’d suggest that Grooveshark’s apparent decision not to pay EMI Publishing could even be part of its legal strategy. Remember that EMI Music Publishing controls the rights to songs released by other major labels, some of which are suing Grooveshark. If Grooveshark were to account to EMI Publishing for those songs, it would mean that the company knew how much they were being played. And the DMCA safe harbor only applies if a company like Grooveshark lacks “actual knowledge that the material or an activity using the material on the system is infringing.”

Please keep in mind that this is just a guess: I’m not a lawyer, and the DMCA is a complex law subject to varying interpretations. But it does seem that it would be pretty tough for Grooveshark to pay song royalties to EMI Publishing for a recording owned by Universal Music Group, while at the same time insisting that it doesn’t know which Universal Music recordings are on its site.

 

 

 

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Discussion

48 thoughts on “To Live Outside The Law You Must Be Honest

  1. I hope they [GrooveShark] get their rear-end handed to them on a silver platter.

    Trying to get your music taken down from there is an excercise in futility.
    I truely hope they don’t survive and come out the other end “legit” ala YouTube.. i hope they crash and burn as a brief footnote in the history of what didn’t work, and the owners are exposed for the mafia type criminials they truely are.

    Posted by James_J | January 6, 2012, 6:20 pm
  2. I’m hoping they survive. There’s really nothing fundamentally different between them and Youtube in terms of the Safe Harbor provided that they don’t have knowledge of infringement or actively promote it. Unfortunately, they may have crossed that if those e-mails about Grooveshark employees uploading songs at the bequest of the CEO are accurate.

    It has become standard operating procedure for companies that want to distribute content online to ask forgiveness instead of permission. The companies themselves pitch this as innovation, then tell rights-holders to file DMCA takedown notices – often by the thousands. By then, of course, they have far more negotiating leverage.

    I think that’s a good thing for innovation when it’s a legal gray area (like Youtube/Grooveshark and the Safe Harbor provisions). Better that they try and get burned in law-suits, than get tied up in interminable legal negotiations with companies that aren’t really hot on the whole idea of “changing business models” in the first place. At the very least, their failure will generate new ideas on how to distribute content, some of which might actually lead to legitimate alternatives.

    Posted by Brett | January 7, 2012, 3:36 am
  3. There are lots of “legitimate” alternatives. iTunes, streaming, online radio. It has become no secret that Grovehshark is playing fast and lose with the DMCA. “Better that they try and get burned in law-suits,”?!? What about the artists they are “burning” everyday?

    As Robert has asked (I’m paraphrasing) “What good are copyright laws if they are not enforced?”

    Why is there not a Grand Jury looking into this? Why is it left to the content creators to fend off the sharks?

    Posted by TMD | January 7, 2012, 6:26 pm
    • I second that. Grooveshark’s modus operandi – especially in light of the emails that surfaced in the UMG lawsuit – could, to me at least, be construed as conspiracy to commit criminal copyright infringement (USC Title 17, section 506 (a), (1), (A)).

      Posted by Faza (TCM) | January 8, 2012, 12:57 am
  4. Except that they are getting enforced. If GrooveShark is found to have violated copyright law by going beyond the Safe Harbor provisions, they’ll get sued out of existence. That’s how it’s supposed to be – a civil lawsuit leading to damages and injunction if they’re in the wrong.

    And yes, I stand by my point.

    Posted by Brett | January 7, 2012, 8:40 pm
  5. Well, in all honesty: if the tech industry’d had to ask permission for all its past inventions, we’d have never had the pianola, radio, tv, colour tv, cassette recorder, vcr, dvd player, dvr, mp3 player, etc. The entertainment industry’s not exactly had a pretty good record when it comes to allowing new technologies, disrupting as they may have been to the business models of that time. In the end though, they’ve brought the entertainment industry a lot of money once they started using it properly, but their argument against new technologies haven’t really changed over the decades.

    Just for clarity: I’m not talking about Robert in this regard. Although he and I may disagree heavily on many topics, I do respect his views, and find them interesting to say the least.

    Posted by Pieter Hulshoff | January 8, 2012, 9:08 pm
    • Well, in all honesty: if the tech industry’d had to ask permission for all its past inventions,

      Stealing is not a new invention. It’s as old as the hills.

      As you note, the entertainment industry doesn’t have a problem with new technology — in fact, writers and artists were among the most eager early adopters of all sorts of technology and many current Hollywood films couldn’t exist without computers* — the problem is with business people who feel that the money they make from using content should not be shared with the creator(s) of that content.

      It’s like supplying a grocery store by stealing the contents of all your neighbour’s gardens and greenhouses. No-one objects to the grocery store — they probably like it — it’s the stealing they complain about. If a business is willing to pay it’s way, I don’t think anyone has a problem with it.

      Grooveshark is not engaging in technological innovation — it’s just defrauding it’s suppliers. And criminals have been doing that since ancient Babylon — probably even longer, but we have court records from Babylon, so we can say with some certainty that it was happening at least as far back as the 1800 BCE.

      ——————————-
      * Actually, given how much support and money people in the entertainment industry give to the tech industry, it’s really surprising to see the level of sheer hatred directed towards those in the entertainment industry by techies in forums like this one.
      Seriously, guys, what did they ever do to you to inspire so much animosity and vitriol?

      Posted by zbekric | January 9, 2012, 7:28 am
  6. Just because technology can (and will) be used for infringement is no reason not to allow the technology. Practically all of my examples were heavily used for infringement, yet would you have liked to have done without them?

    My note was that the entertainment DOES have a problem with new technology. It’s just that when they finally come around, kicking and screaming, that they usually manage to make a ton of money from it.

    Look at my (small) list of examples. Each of these was decried by the industry as the end of culture, and if it had been up to the entertainment giants, none of them would ever have existed. That’s why technology shouldn’t be regulated by the entertainment industry, and why it’s often better to ask for forgiveness than for permission. Read up on the BPDG notes from less than a decade ago sometime to see what extremists like the MPAA are asking for.

    The tech industry has invested a fortune in demanded TPM solutions, like for dvd and blu-ray, and yet there’s not a single movie not available on the file sharing networks. We warned them it wouldn’t work, just like we’re warning you now that SOPA won’t work. In the mean time, it’s still illegal to write an Open Source dvd, blu-ray or iTunes player thanks to the DMCA, and hardly any new features for these machines have come out since their introduction. Collateral damage?…

    Posted by Pieter | January 9, 2012, 9:45 am
    • Just because a technology can (and will) be used to do wrong is no reason to decide that the action is no longer wrong.

      You can use a crowbar for many legitimate purposes on a building site, you can also use to break into people’s houses. No-one wants to disallow crowbars, but those who use them for breaking-and-entering are still prosecuted.

      You can use petrol to fuel various engines or you can sniff it for the intoxicating effects. No-one wants to disallow petrol or petrol–fueled engines, but since sniffing it is harmful, manufacturers of petrol are required to include additives to make the smell more repellent.

      You’re adopting an attitude that because a technology enables a certain activity, those who use it for that activity are magically absolved of any and all responsibility for their actions. A sort of “the [insert pet technology] made me do it” defense.

      Whereas the reality is that the objection isn’t to the technology, but to the abuse. And it’s not unreasonable to ask for changes to be made to the technology — such as adding safety locks to handguns — to try and limit the abuse.

      Posted by zbekric | January 10, 2012, 8:00 am
      • Actually, that’s not at all what I’m saying. Quite the contrary even. I believe I’ve been quite consistent in my opinion that it’s those who use technology for illegal purposes who should be liable; not those who provided the technology. That means that if someone uploads a music video to YouTube without permission from the rightsholder(s), that person should be held responsible, and not YouTube for providing the technology.

        As for requesting changes: I wonder how many of those you mentioned are required by law. Also: note how all of those changes are meant to prevent accidental usage of the device. A safety lock will not prevent someone from abusing the weapon; it just helps prevent accidental firing. None of them are asking for (often expensive) measures to prevent people from doing what they want to do.

        Posted by Pieter Hulshoff | January 10, 2012, 8:49 am
      • Actually, that’s not at all what I’m saying. Quite the contrary even. I believe I’ve been quite consistent in my opinion that it’s those who use technology for illegal purposes who should be liable; not those who provided the technology.

        This is like arguing that pimps should not be prosecuted because it’s the prostitutes who commit the actual crime. Or money-launderers because it’s the drug-dealers who commit the crime. If a company is going to accept immoral earnings, then they really don’t have any basis on which to object if those earnings are targeted.

        I’d find your concern that innocent parties should not be harmed by these things more convincing and less myopic if you weren’t using it to defend a position that content-creators should be denied payment for their work. Somehow everyone else — including those who knowingly, willingly and deliberately aid and abet those engaged in the wrongdoing — must be protected, but the victims of that wrongdoing are somehow not worthy of any form of protection at all. Certainly not any form of protection that might even slightly inconvenience these other parties.

        Posted by zbekric | January 11, 2012, 8:25 am
  7. I know this may sound clichéd but, technology (your list) doesn’t commit copyright infringement, people do. In this case, Grooveshark.

    Posted by TMD | January 9, 2012, 3:47 pm
    • There’s a big difference between selling a gadget (after which you no longer control it) and running a service (over which you exert some control). In US law, this is referenced in the Napster decision.

      You can continue to debate whether Grooveshark is good or bad – you already know how I feel. But it’s a bit silly to compare Grooveshark to a VCR – one is an ongoing business that provides a service and one is a gadget. And at least one court has recognized this.

      Posted by roblevine1 | January 9, 2012, 6:31 pm
      • Under that definition, Kazaa and Gnutella should have been legal. They also didn’t run any servers; just provided a gadget over which they had no control after it was downloaded.

        Posted by Pieter Hulshoff | January 9, 2012, 7:58 pm
      • That wasn’t the main point of my argument though: The entertainment industry has been crying wolf for so long that it’s impossible to see why they would be right this time. The laws they’ve proposed have always had quite a lot of collateral damage; damage that many in society are not willing to pay for.

        Posted by Pieter Hulshoff | January 9, 2012, 8:34 pm
  8. Exactly, gadgets don’t commit copyright infringement. The people that use them might… But that’s another topic.

    Posted by TMD | January 9, 2012, 8:04 pm
  9. >>>Under that definition, Kazaa and Gnutella should have been legal. They also didn’t run any servers; just provided a gadget over which they had no control after it was downloaded.

    Hard to say. Those companies certainly argued that. But I don’t remember the exact wording, so I’m not sure they would have been OK – it was more complicated than I made it out to be (and I think some of it involves running a service instead of selling a device).

    In any case, it never came to that. In the Grokster case, the US Supreme Court decided that services like them “induced” infringement – and provided one way to draw a line between useful and parasitic technology. Since the US has a precedential court system, that is the law of the land – although it’s not as clearly drawn as copyright holders would like. It’s hard to say whether Grooveshark runs afoul of this.

    To me, a better question is, could Grooveshark take reasonable steps to limit – but not eliminate – infringement. The answer is obvious: Yes. For example, there are few if any Beatles tracks on Grooveshark, so there must be some way of limiting infringing content. Some observers have suggested that the Beatles block may have something to do with the fact that Grooveshark has a deal with EMI, but that’s just speculation, of course.

    Posted by roblevine1 | January 9, 2012, 8:37 pm
    • I have always found this “inducement” part rather strange to be honest. I don’t think that should have anything to do with whether or not you broke a law, and all it’s teaching people is that if you don’t want to run afoul of it that you have to make sure you don’t leave a trail that shows you had any such intentions. It’s not going to prevent the new, yet similar, services to come into existence.

      In order for a site like Grooveshark to be able to limit infringement by their users, a few prerequisites must be met:
      1. The file formats used must be known. I think for Grooveshark that is the case, but for e.g. RapidShare it is not.
      2. The copyright holders need to provide the identification information (signature files).
      3. Someone needs to develop the identification software.
      4. Someone needs to pay for the development of the identification software, and the take down process.
      5. False positives must be prevented to make sure free speech is not compromised.
      Question remains: how do you program the grey area that is fair use?

      Posted by Pieter Hulshoff | January 10, 2012, 8:09 am
      • And yet it’s almost impossible to find a Beatles song on Grooveshark! How *do* they do it?!?

        Posted by roblevine1 | January 10, 2012, 8:37 am
      • Y’know, you are making this sound a lot harder than it is, Pieter. The reason it’s actually a lot simpler is that the majority of the issues aren’t technological ones (which indeed could be tricky) – they’re people issues, that are fairly simple.

        Sticking to Grooveshark, since that’s the topic of the day, let’s remind ourselves that they primarily market themselves as a music listening service – aiming to compete with Spotify at the moment – and not a music hosting service (like Bandcamp or ReverbNation). The hosting bit is actually a thinly disguised ploy by Grooveshark to avoid licensing, since they believe they can hide behind the DMCA.

        With that in mind, let’s examine what filtering entails in this particular situation:
        1. Grooveshark knows what licences it holds (if any). Therefore, they could adopt a policy of only serving those tracks to which they have licences, with indemnity. That is: they only host a song for which they have signed a legally binding agreement with somebody they are pretty certain is a real person, who has warranted that they are authorised to grant a licence for that song. Then, if Grooveshark is sued, they simply point the finger at whomever they got the licence from and possibly file their own lawsuit for breach of contract. That’s how it’s done in the real world.

        However, the policy actually adopted by Grooveshark is “we don’t need a licence unless somebody tells us we do”. This has nothing to do with technology – it is purely a business decision.

        2. In order to operate as a music listening service successfully, Grooveshark needs to be able to reliably deliver whatever the user is looking for. This means that the metadata – track title and artist name – pretty much takes care of all the filtering you need. Notice that, while it is possible that there are Beatles tracks, for example, floating around Grooveshark somewhere under changed names, if a user runs a search for a Beatles song, those songs won’t come up. Once word gets out that you can’t find Beatles songs on Grooveshark, people stop coming to Grooveshark for Beatles songs. Simple.

        3. In practice, the two approaches above could be combined in the following manner: when a user uploads song X by artist Y, Grooveshark checks the metadata and possibly the content against its licenced tracks database and only permits the upload if it has the licence. Since Grooveshark will be determining acceptable file formats anyway, they don’t have to worry about getting a file they don’t know what to do with.

        If the track isn’t in the database, an upload may still be possible, but would require the user providing some form of verifiable ID (a credit card would probably be easiest to implement) and entering into an agreement with Grooveshark, whereby he grants them indemnity and accepts full responsibility for any copyright disputes arising from his upload – right up to Grooveshark identifying him to the plaintiffs.

        4. Free speech isn’t implicated at any point, because you don’t have a free speech right to upload anything to Grooveshark.

        If you were paying attention, then you can probably see why Grooveshark didn’t do it like that. For a start, they’d need to negotiate licences beforehand. Two: given that a user could either upload something already licenced, or would need to jump through legal hoops, the whole user uploads thing could be scrapped and Grooveshark could just source its content directly from the labels/distributors – like Spotify for example.

        For a service like Grooveshark – which primarily provides content access to passive consumers, in this case: those who want to listen to Internet radio – a UGC approach doesn’t make a lot of sense, unless they’re trying to be cheeky and get around paying royalties.

        P.S.
        Just in case it wasn’t completely obvious: the way that Grooveshark can most easily filter out Beatles songs is – of course – not host any song labelled as being by the Beatles. They may be a lovable group of rapscallions, but I don’t think that even they believe they could get away with claiming they didn’t know who the Beatles were or that they needed a licence for their songs.

        Posted by Faza (TCM) | January 10, 2012, 3:34 pm
  10. Pieter wrote: “The entertainment industry has been crying wolf for so long that it’s impossible to see why they would be right this time. “

    Yes, there were vocal opponents to some of these things (and rightly so, at least to get Congress to address the need for creators licenses). If my product requires Your product to have any value (unless… you listen to blank disks.. or watch blank VCR tapes..) there should be a system in place to compensate the person(s) whose product it relies on, otherwise it is strictly parasitic and unfair by definition.

    It does go both ways though.. all the while when working out licenses for ‘player pianos’, for instance (and the same for all the examples you gave), the tech companies cried that it would ruin innovation and stop progress. We all know the answer to that wolf howl..

    There needs to be balance. For tech and whose product that tech uses. Right now, it is an unhealthy free-for-all that stifles (LEGAL) innovation.

    Posted by James_J | January 9, 2012, 11:56 pm
  11. Please remind me which licensing requirements were set in e.g.
    Sony Corp. of America v. Universal City Studios, Inc (Betamax case)
    Diamond Multimedia Systems Inc.’s v. RIAA (Rio mp3 case)
    There were some licensing requirements set for radio and the pianola, but those were for the legal selling/transmitting of the music by the defendents; not for what users used the technology for.

    In which cases and over what did the tech companies cry that it would ruin innovation and stop progress exactly? The only cases I’m aware of was the tech companies stating that what the entertainment industry was asking for would have that effect, but since in those cases the entertainment industry didn’t get their way of course the resulting ruin of innovation didn’t happen either.

    Posted by Pieter Hulshoff | January 10, 2012, 9:30 am
    • http://www.copyhype.com/2011/11/the-story-of-john-and-jack/
      i’m in agreement with Terry Hart when he wrote: “In all cases, the opposition is not to new technologies, but to those who think the introduction of a new technology gives them the privilege of misappropriating someone else’s work“

      I don’t speak for the one or two people who always get cited when you say the entire Content Industry (whatever that means…) cried wolf. I don’t speak for corporations, or different organizations. I speak as a lone creator (in two fields.. both of which the internet has enabled unprecedented mass piracy of my works). Just because there’s a new technology, doesn’t negate my rights under the Constitution, nor does it negate over 200 years of law.
      I applaud new innovation, as long as its use doesn’t impinge on my rights as a citizen and a human being.

      Posted by James_J | January 10, 2012, 4:04 pm
      • You’re indeed a lone creator, but I also doubt you were up in Washington lobbying against the VCR. Note how the SC decision on the Betamax decision didn’t give the rightsholders anything they asked for, yet the industry thrived when they finally started using its potential.

        Nowhere do I state that you need to negate your rights when new technology comes along. All I’m stating is that liability should be placed with the abusers of technology, and not with those who provide the technology. That’s exactly what the SC decided, despite Universal City Studios, Inc asking it to force Sony to build in anti-copying technology.

        Posted by Pieter Hulshoff | January 10, 2012, 7:32 pm
  12. Hmm, I really wish this site would allow replies to be deeper than 3 levels; it would make discussions a whole lot easier to track. :) This is in reply to Posted by Faza (TCM) | January 10, 2012, 3:34 pm:

    True, Grooveshark could have written a different kind of service, which would not have allowed for any anonymous user generated content. The main question is if the law forces them to or not; I’m sure the lawsuit(s) will come back with an answer to that. Corporations generally work in their own self interest; these technology companies are no different in that regard than the entertainment companies.

    You also stated:
    “4. Free speech isn’t implicated at any point, because you don’t have a free speech right to upload anything to Grooveshark.”

    That statement in itself is true, but it would be a free speech issue if congress enacted a law that would make it practically impossible to create a service that allows anonymous user generated speech (which includes music), which is basically what you’re asking for when you say “If the track isn’t in the database, an upload may still be possible, but would require the user providing some form of verifiable ID (a credit card would probably be easiest to implement)”.

    Still, I stand by my statement that considering the kind of service Grooveshark is running they could probably use some kind of content ID system. It’s important to note however that developing such a system is not yet very cheap, so requiring one by law would basically prevent a new YouTube from ever existing (which I guess YouTube wouldn’t mind).

    Posted by Pieter Hulshoff | January 10, 2012, 7:48 pm
    • What i would like to see (beyond most sites actually responding to a take-down notice…) is a situation as to where once you send a take-down, that the same file cannot be re-uploaded again (usually 3 minutes later..) to that site.

      I’m not a corporation. I don’t have the funds to hire a dozen people to do nothing but send out takedown notices 24/7 (not that takedowns are even recognized at alot of sites).

      I should only have to send a single notice for each file (not each link to multiples of the same file) at any given site. GrooveShark doesn’t even respond to half the notices they get. Internal emails that have come to light show that they do indeed know what’s going on (have knowledge of infringment) but do nothing about it as a matter of policy. They hope to build a valuable buisness off of others’ work without the burden of having to pay anyone but their own bank account… that’s not right. They are but one example…

      Posted by James_J | January 10, 2012, 9:37 pm
      • If the notice-and-takedown of Grooveshark is below law standards, then I’m sure they will be taken to court for that. I have little sympathy for corporations that break the law.

        What’s clear though that a corporation will rarely do more than is required by law (YouTube’s actually doing surprisingly well in that regard). Its primary concern is to their shareholders, and so actions that cost (a lot of) money, yet yield no results will not be implemented.

        Question is of course how to change that behaviour without making it impossible to start any business in this area. It’s great that YouTube’s now capable of implementing a content ID system, but if they’d been required by law to implement it, YouTube would never have existed in the first place. Now, some of you may not find that problematic, but I know of a lot of artists, including myself, who do. Next to being heavily used for infringement, it’s also a great platform for bringing your own work to the public.

        Posted by Pieter Hulshoff | January 10, 2012, 10:55 pm
  13. GrooveShark is being taken to court

    Here’s the techy version of the story:
    http://news.cnet.com/8301-31001_3-57332246-261/grooveshark-email-how-we-built-a-music-service-without-um-paying-for-music/

    Posted by James_J | January 11, 2012, 6:28 am
  14. I’d find your concern that innocent parties should not be harmed by these things more convincing and less myopic if you weren’t using it to defend a position that content-creators should be denied payment for their work.

    Where am I defending a position that content-creators should be denied payment for their work? As a full-time chip designer, and spare-time OSS developer and musician I’m very much in favour of copyright law. There are just limits to the price I’m willing to pay to enforce copyright law. If a new enforcement law causes (far more) damage than it gives benefits, then I’m heavily against it.

    Take YouTube for instance. There’s no doubt that infringement has played its role in the growth of the site, yet many of us feel that the current YouTube is a very good thing. Many of us also feel that general search engines like Google and Bing are essential tools to a vibrant internet. When creating a new law, lawmakers are often quick to state that sites like YouTube or search engines like Google would not be effected, but the better question is: would these sites have been able to come into existence under the new law? Yes, YouTube has the financial and technical capabilities to develop a content ID system, but there’s no way they could have done that when they just started. I find it rather interesting that Google opposes legislation that basically establishes it as one of the few user generated platforms, because that legislation would make it almost impossible for a new YouTube to come into existence.

    Posted by Pieter Hulshoff | January 11, 2012, 10:51 am
    • Would a new illegal site be able to rob people until they become legal? no!! And it shouldn’t be.
      I’d argue that this kind of buisness practice (ala how YouTube started) is very negative.

      “But i like YouTube”
      Great.. how do you know that something 10x better wouldn’t be there in its’ place if there was actual LEGAL and Finantial incentive to build a legit service. As of now, there’s no incentive to build something “good”, there’s just incentive to build something “as cheaply as possible”.
      Remove the illegal players, and you’ll see a flood of investment into some awesome services.

      Posted by James_J | January 12, 2012, 2:49 pm
      • >>>Remove the illegal players, and you’ll see a flood of investment into some awesome services.

        This is a very important point. If I may quibble, I’m not sure you’d see more money in the aggregate, but I do think that money would be channeled more efficiently.

        Posted by roblevine1 | January 12, 2012, 10:13 pm
      • I’d argue that this kind of buisness practice (ala how YouTube started) is very negative.

        It would depend a bit on what you think the makers of YouTube thought when they set it up, but based on your wishes it would be impossible to set up a site that allows user generated content. I find that to be highly problematic, but it matches the opinion I’ve heard from the entertainment industry in the Netherlands: if a platform is incapable of preventing infringement (which in case of a new platform that allows user generated content is practically always) , that platform should not be allowed to exist. Although I can respect that opinion, it’s exactly the reason why the entire tech world (including companies that are usually the first to call for stronger copyright legislation) line up against you. Considering the minimum requirements the RIAA and MPAA set forth against any business that asks them, no new platform would every come into existence, which means you’ll be basically handing big guys like Google, Microsoft, Apple, and Amazon a perpetual monopoly.

        Posted by Pieter Hulshoff | January 13, 2012, 8:46 am
    • How does denying Google the portion of their income stream coming from running advertisements on sites offering pirated content impact on the viability of Google as a search engine?

      I mean, Google could just offer the search engine and drop the advertising entirely. That might reduce their income to zero, but since their attitude is that content creators shouldn’t be paid for their efforts either, that would just be seen as leading by example.

      Similarly, companies like Visa, Mastercard and PayPal earn enough through fees on legitimate transactions, that losing the portion they earn on payments made to pirate sites would be a loss, but only a bearable one.

      And storage sites like Megaupload, Filesonic, Mediafire, Putlocker, and so on could depend on the fees the earn from offering high-speed access to non-pirated content. Like the other companies, all they would loose is the income from piracy.

      As far as I can tell, these companies are just using piracy to to divert money that normally would be going to the content creation industries – and which is used to pay content creators – into their own coffers. Since you feel that denying them that diverted income is “far more damage” than enforcing copyright so that content creators can get paid, how are you not arguing that content creators should be denied payment for their work?

      If content only generates a certain amount of income and you’re arguing that it should all go to these other businesses, then it’s an unavoidable corollary that none of it should go to the content creators.

      Posted by zbekric | January 16, 2012, 8:55 am
      • As far as I know, Google isn’t against dropping ads on infringing sites, though it is against that such should be done before an accused site has had their day in court. Ex-parte decisions, and total immunity for payment services is of course out of the question. Just because rights holders have trouble enforcing the law doesn’t mean we should just do away with due process, and innocent until proven guilty in a court of law.

        Personally, despite having many reservations against Google, I find the notion that they (along with payment providers) “benefit from infringement” simply blame shifting. Google does a lot to reduce infringement, generally much more than is required from them by law. Under Murdoch’s vision, car sellers benefit from bank robbery, trains from football hooligans, etc. To say that they shouldn’t be allowed to operate if they can’t keep infringement under control is absurd.

        Posted by Pieter | January 16, 2012, 11:50 am
  15. Dunno if you actually read the articles, or just jump right to the comments… but the entire post was about GrooveShark and it being taken to task..

    Yes, but what’s your point? You seem to be under the impression that I would applaud companies for breaking the (copyright) law. I would not, as I’ve stated many times here in the comments (including in this thread).

    I think there should be room in the law for user generated platforms, even if they are (at that time?) incapable of preventing the inevitable infringement that happens on every one of these platforms, but I do expect such companies to adhere to the law. If they set out deliberately to infringe, then they should be taken to court. I’m sure the truth will come out there.

    Posted by Pieter Hulshoff | January 13, 2012, 8:54 am
    • My point?
      You said: “If the notice-and-takedown of Grooveshark is below law standards, then I’m sure they will be taken to court for that

      I was simply pointing out that the entire blog post to which we are commenting… was talking about GrooveShark being sued.

      Posted by James_J | January 13, 2012, 10:38 pm
      • True, and as I said: the truth will come out in court. If they broke the law, they’ll have to pay. Simple as that. It just sounded like you thought I should be against this lawsuit for one reason or another.

        Posted by Pieter Hulshoff | January 14, 2012, 8:43 am
  16. It would depend a bit on what you think the makers of YouTube thought when they set it up, but based on your wishes it would be impossible to set up a site that allows user generated content.

    It’s not what I think… it’s what THEY [YouTube founders] thought (or more accurately- DID). I suppose you totally dismissed their in-house emails that discussed them (employees) uploading known copyrighted content from labels, and discussing how that kind of stuff was 80%+ of the draw to their then budding site… and how they wouldn’t take it down, yadda yadda yadda.

    If people play by the rules, there’s no reason a legit startup can’t compete with the established (and get VC to fund such)… but not if the lawless ‘Wild West’ is the norm. I’m not against YouTube type places, for the record… i’m against vultures and leeches building their buisness off the backs of unwilling others. There’s a right way, and there’s the “internet” way.

    Posted by James_J | January 13, 2012, 10:44 pm
    • I’m sure that if they were foolish enough to break they’ll be called accountable. As said many times before: I have little to no sympathy for companies who break the law. If however they did not, then they should have a right to build a new platform, even if they are incapable of preventing the inevitable infringement that some of their users may commit. If not, we’ll never have another user generated platform, unless it’s built by the established big companies.

      Posted by Pieter Hulshoff | January 14, 2012, 8:42 am
  17. I’ve been thinking about the internet “blackout” to protest SOPA (and PIPA). I think the groups involved are targeting the wrong people.

    We all know that the real forces behind bills like SOPA and PIPA are the content-creators. Wouldn’t it be better, and more effective, to target them directly.

    So, here’s a suggestion: the various sites upset about SOPA and PIPA could boycott the content creators. Google could refuse to ran any ads on sites featuring movies, music, books, etc. Wikipedia could take down all the articles they have devoted to works of fiction and the words presented in them. Storage sites like Megaupload, Filesonic, etc. could all refuse to store any files identified as containing films, books, music, television shows, and so on.

    Deprive the content creators of all those services. That’ll show them who’s boss.

    Posted by zbekric | January 19, 2012, 8:41 am
  18. I’m still waiting for any SOPA proponent to give me a list of 5 websites they think will be stopped by SOPA.

    Posted by Pieter | January 19, 2012, 12:13 pm
    • Thank you for this. It was an interesting read.

      Some of my favourite bits:

      devised by people who either don’t understand how the internet works, or worse, understand it all too well

      Nice double-bind. If you don’t know how the internet works, you can’t criticise SOPA because you’re ignorant. If you do know how the internet works, you can’t criticise SOPA because you’re too clever by half. Certainly skewers all the critics there.

      Because the divide over SOPA/PIPA isn’t political, it’s between those who understand how the internet works and those who don’t

      Ah, so by the end of the article he’s decided it’s option A.

      SOPA’s sponsor, Texas Republican, Lamar Smith, thinks any fears are “completely unfounded”.

      “The criticism of this bill is completely hypothetical; none of it is based in reality,” said Smith, R.-Texas,
      in a statement. “Not one of the critics was able to point to any language in the bill that would in any
      way harm the Internet. Their accusations are simply not supported by any facts… they need to read
      the language. Show me the language.”

      You’re on, Lamar.

      And then he never quotes any part of the Act. He doesn’t show the language. If he’s going to publicly accept a challenge, then he really should try to live up to it. Or edit the acceptance out of the final article.

      After he “researched the bills [SOPA and PIPA] and clawed my way though mountains of evidence” he doesn’t share any of that evidence with us. Instead we get some really nice anecdotes. Most of which have nothing to do with SOPA. Instead there all about how somebody somewhere once did something bad. Or stupid. Or bad and stupid. And therefore… SOPA is wrong!

      Can’t argue with that. Seriously, you just can’t. It’s not coherent enough. All you can do is point with a look of incredulity on you face an a fear for what the American education system has become in your heart.

      Posted by zbekric | January 20, 2012, 8:28 am
      • Nice double-bind. If you don’t know how the internet works, you can’t criticise SOPA because you’re ignorant. If you do know how the internet works, you can’t criticise SOPA because you’re too clever by half.

        Please keep the text in context; this part was about those who devised the law. Certainly not all who support SOPA were involved in the devising of it.

        And then he never quotes any part of the Act.

        You have a point though the article certainly describes in understandable language what is in the law. It may not have been the intention behind the law, but it is what the law says (or is vague enough so that it could be explained as such by a judge).

        All you can do is point with a look of incredulity on you face an a fear for what the American education system has become in your heart.

        I found it a lot more thoughtful than the proponent point of view of: I’m not a nerd, but… I agree that we’re having some thoughtful discussions on the matter here, but most of what I read on the proponent side’s as bad as what I read on the opponent side of this debate. Hardly anyone actually knows what’s in the law.

        Posted by Pieter Hulshoff | January 20, 2012, 10:01 am
      • I found it a lot more thoughtful

        It wasn’t thoughtful. It doesn’t matter whether you agree or not, on a purely technical level it was a very poorly presented argument.

        I am a nerd, and many years ago I used to play a roleplaying game called Call of Cthulhu. Back then (I think it’s changed in more recent editions) there were two skills, Debate and Fast Talk, both used to try and persuade other characters. The difference between them was that Debate was reasoned argument built on logic and evidence, while Fast Talk relied on emotional appeal and a rapid, almost shotgun style, presentation of assertions and anecdotes to overwhelm the target and get them to agree.

        This article is an almost text-book example of Fast Talk. That’s why I didn’t address any of the writer’s points — doing so would have required a response at least five times the length of the original article, and given that it’s really not clear how those points address the subject, it wouldn’t have been all that helpful anyway. Instead I commented entirely on his technique.

        Hardly anyone actually knows what’s in the law.

        To a significant extent, the problem here isn’t the actual law. There’s a philosophical difference dividing the two sides and I think that’s what really needs to be addressed. There are a whole bunch of assumptions on both sides that need to be drawn out, stated clearly and discussed.

        However, that’s going to take Debate rather than Fast Talk.

        Posted by zbekric | January 21, 2012, 5:12 am

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