Comment by AnthonyMouse
2 years ago
> They typically don't need to dedicate the same resources to compliance as large entities though, and this feels fair to me.
They typically don't actually dedicate the same resources because they don't have much money or operate at sufficient scale for anybody to care about so nobody bothers to sue them, but that's not the same thing at all. We regularly see small entities getting harassed under these kinds of laws, e.g. when youtube-dl gets a DMCA takedown even though the repository contains no infringing code and has substantial non-infringing uses.
> They typically don't actually dedicate the same resources because they don't have much money or operate at sufficient scale for anybody to care about so nobody bothers to sue them
Yes, but there are also powerful provisions like section 230 [1] that protect smaller operations. I will concede that copyright legislation has severe flaws. Affirmative defenses and other protections for the little guy would be a necessary component of any new regime.
> when youtube-dl gets a DMCA takedown even though the repository contains no infringing code and has substantial non-infringing uses.
Look, I have used and like youtube-dl too. But it is clear to me that it operates in a gray area of copyright law. Secondary liability is a thing. Per the EFF excellent discussion of some of these issues [2]:
> In the Aimster case, the court suggested that the Betamax defense may require an evaluation of the proportion of infringing to noninfringing uses, contrary to language in the Supreme Court's Sony ruling.
I do not think it is clear how youtube-dl fares on such a test. I am not a lawyer, but the issue to me does not seem as clear cut as you are presenting.
1. https://www.eff.org/issues/cda230 2. https://www.eff.org/pages/iaal-what-peer-peer-developers-nee...
> Yes, but there are also powerful provisions like section 230 [1] that protect smaller operations.
This isn't because of the organization size, and doesn't apply to copyright, which is handled by the DMCA.
> But it is clear to me that it operates in a gray area of copyright law.
Which is the problem. It should be unambiguously legal.
Otherwise the little guy can be harassed and the harasser can say maybe to extend the harassment, or just get them shut down even if is is legal when the recipient of the notice isn't willing to take the risk.
> > In the Aimster case, the court suggested that the Betamax defense may require an evaluation of the proportion of infringing to noninfringing uses, contrary to language in the Supreme Court's Sony ruling.
Notably this was a circuit court case and not a Supreme Court case, and:
> The discussion of proportionality in the Aimster opinion is arguably not binding on any subsequent court, as the outcome in that case was determined by Aimster's failure to introduce any evidence of noninfringing uses for its technology.
But the DMCA takedown process wouldn't be the correct tool to use even if youtube-dl was unquestionably illegal -- because it still isn't an infringing work. It's the same reason the DMCA process isn't supposed to be used for material which is allegedly libelous. But the DMCA's process is so open to abuse that it gets used for things like that regardless and acts as a de facto prior restraint, and is also used against any number of things that aren't even questionably illegal. Like the legitimate website of a competitor which the claimant wants taken down because they are the bad actor, and which then gets taken down because the process rewards expeditiously processing takedowns while fraudulent ones generally go unpunished.
> This isn't because of the organization size, and doesn't apply to copyright, which is handled by the DMCA.
Ok, I'll rephrase: the clarity of its mechanisms and protections benefits small and large organizations alike.
My understanding is that it no longer applies to copyright because the DMCA and specifically OCILLA [1] supersede it. I admit I am not an expert here.
> Which is the problem. It should be unambiguously legal.
I have conflicting opinions on this point. I will say that I am not sure if I disagree or agree, for whatever that is worth.
> But the DMCA takedown process wouldn't be the correct tool to use even if youtube-dl was unquestionably illegal
This is totally fair. I also am not a fan of the DMCA and takedown processes, and think those should be held as a negative model for any future legislation.
I'd prefer for anything new to have clear guidelines and strong protections like Section 230 of the CDA (immunity from liability within clear boundaries) than like the OCILLA.
1. https://en.wikipedia.org/wiki/Online_Copyright_Infringement_...