Comments on: 10 Things Cory Doctorow Hates about ASCAP

By: Jim Lippard

Jim Lippard — Wed, 21 Jun 2006 05:38:44 +0000

"it seems plausible to argue that YouTube is simply a common carrier like my ISP"

Pet peeve--ISPs aren't common carriers. ISPs do have exemption from liability for defamation by their users (under a piece of the Communications Decency Act that has survived constitutional scrutiny, see Zeran v. AOL, Blumenthal v. Drudge & AOL, and Aquino v. ElectriCiti), but when it comes to copyright the online provider safe harbor under the DMCA you mention is the only real route they have. And that means they've got to honor takedown requests and take action to remove access for users who are persistent violators.

(BTW, to clarify, some companies that offer Internet services are regulated as common carriers, but their Internet service is not. They're common carriers only in virtue of being ILECs/CLECs/IXCs/LD carriers.)

By: Jim Lippard

Jim Lippard — Wed, 21 Jun 2006 04:38:44 +0000

"it seems plausible to argue that YouTube is simply a common carrier like my ISP"

Pet peeve--ISPs aren't common carriers. ISPs do have exemption from liability for defamation by their users (under a piece of the Communications Decency Act that has survived constitutional scrutiny, see Zeran v. AOL, Blumenthal v. Drudge & AOL, and Aquino v. ElectriCiti), but when it comes to copyright the online provider safe harbor under the DMCA you mention is the only real route they have. And that means they've got to honor takedown requests and take action to remove access for users who are persistent violators.

(BTW, to clarify, some companies that offer Internet services are regulated as common carriers, but their Internet service is not. They're common carriers only in virtue of being ILECs/CLECs/IXCs/LD carriers.)

By: Randy Picker

Randy Picker — Tue, 20 Jun 2006 22:24:59 +0000

Quick points. The "for profit" language from the 1909 Act isn't in current law, which has a unified set of rules for public performances (not tied to profit).

YouTube will clearly try to take advantage of the Section 512 safe harbor, and the line of cases regarding "passive" activities of intermediaries, such as the Netcom case and more recently in Fourth Circuit, CoStar. That will be the fighting ground should it ensue.

By: Randy Picker

Randy Picker — Tue, 20 Jun 2006 21:24:59 +0000

Quick points. The "for profit" language from the 1909 Act isn't in current law, which has a unified set of rules for public performances (not tied to profit).

YouTube will clearly try to take advantage of the Section 512 safe harbor, and the line of cases regarding "passive" activities of intermediaries, such as the Netcom case and more recently in Fourth Circuit, CoStar. That will be the fighting ground should it ensue.