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Old 08-18-2009, 11:52 AM   #58
Elfwreck
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Quote:
Originally Posted by Abecedary View Post
I may be mistaken, but I believe that checking or verifying the validity of the works beforehand opens them up to considerably larger damages in the event that something ever does slip through. Also, as it is, they are working within the current legal framework (i.e., removal of infringing material after receiving a takedown notice). It makes perfect business sense to operate as they are now until such time as they're forced to add a verification department. Note also that this is exactly how YouTube and Scribd operate (or just about any site/company that allows mass uploading of user-created [or potentially infringing] content).
Verifying before releasing would indeed open them to more liability--if they were covered by "safe harbor" rules. Since they're directly profiting from each book they release for sale, safe harbor may not apply.

Section 512(a) of the DMCA indicates that there's no liability to the service provider, as long as (1) the service provider didn't initiate the transaction, (2) the submit/retrieve process is automated (at least from the SP's perspective), (3) the SP doesn't individually select recipients, (4) storage is transitory (this refers to things like email communications), and (5) the content isn't modified.

So far, that looks like they might qualify, except that point 4 is a bit tricky. However, farther down in the rules, at 512 (c)(1)(B), it mentions that liability is only avoided if the service provider "does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity."

YouTube and Scribd aren't selling you access to vids & ebooks; they receive no direct financial benefit from providing you with infringing copyrighted material.

In any case... since I doubt they received DMCA takedown notices from the Heinlein estate, Harlan Ellison, Rowling's lawyers, Stephen King, and Robert Jordan's family all in the last 24 hours, they very likelyare doing some management of content, not just waiting for DMCA notices to come through. This would exempt them from the whole Safe Harbor concept.
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