Hollywood backs Viacom in Google legal fight
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19th May 2010
Old 19th May 2010
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Hollywood backs Viacom in Google legal fight

Hollywood backs Viacom in Google legal fight | Media Maverick - CNET News

Quote:
"We are pleased that such a broad group of guilds and unions, content owners, rights organizations, and public policy groups have made their support clear for Viacom's position in our case against YouTube," a Viacom spokesman said in a statement. "These important groups plainly recognize that YouTube's disregard for copyright benefits only Google."
#2
19th May 2010
Old 19th May 2010
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I found the following quote in the introduction of the brief curious:
Quote:
"Congress then carefully crafted a law, the DMCA, to address these serious issues."
I tend to agree with David Nimmer's description of the DMCA as anything but carefully crafted. Keep in mind, these criticisms have nothing to do with the substance or goals of the law. They are only aimed at Congress's growing inability to administer and regulate an increasingly complex copyright scheme. Nobody wins in this situation.

Quote:
"[N]othing compares for sheer formal defects to the Digital Millennium Copyright Act (DMCA). Massive in scope and even more gargantuan in procedural complexity, the DMCA is the granddaddy of all distensions of copyright doctrine, reminiscent of Jeremy Bentham's “nonsense on stilts.” Whether one approves of the substantive thrust of the DMCA's compromises reached after mammoth negotiations among record companies, motion picture studios, telephone providers, equipment manufacturers, and others, it is clear that its execution leaves copyright law in shambles.

Because I have written extensively about the DMCA in other contexts, I will not rehearse in detail its various procedural defects. The following points summarize:

• Coherence. For sheer incoherence, the massive scope of the DMCA is nonpareil. It has the signal distinction of failing to embody the chief goal that its congressional architects ceaselessly proclaimed; namely, saving the country from the specter of a pay-per-use world. It is subject to endless contradictions and interpretive dead ends. Among many other examples, its antipornography feature cannot be sensibly understood; it creates the specific offense of deleting “copyright management information” that does not exist; it defines contradictory elements of mental intent; and it treats watermarks in mutually exclusive categories.

• Reality. The DMCA is unique by regulating in 1998 activities that not only had no existence then but which still continue to have no reality today. As an example, its provision governing “technical measures that are used by copyright owners to identify or protect copyrighted works” may not come to fruition until decades or centuries in the future.

• Breadth. In terms of parochial interests, great swaths of the legislation were crafted for the particular benefit of named entities, with no pretense of serving the commonweal generally. This is the instance, noted above, in which Congress explicitly granted a special dispensation to “TCI Music, Digital Cable Radio Associates, and Muzak that was not applicable to other individuals and corporations.” In addition, Congress inserted the longest portion of section 1201 for the specific benefit of Macrovision Corporation.

• Transparency. A transparent law clearly signals its readers to the domains of its application. The fact that litigation is reaching disparate conclusions at present whether the Digital Millennium Copyright Act even applies to such diverse realms as ink cartridges and garage door openers dispels any impression that it succeeds at being transparent."
David Nimmer, Codifying Copyright Comprehensibly, 51 UCLA Law Review 1233
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19th May 2010
Old 19th May 2010
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hey Terry -

you're a lawyer right? law student? Well I may be woefully outgunned here from a legal point of view but that won't stop me from having an opinion!

here goes...

yeah, I think the bad news for BOTH Viacom and Google is that the DMCA doesn't really seem to be holding up to well. I do think Google/YouTube has (at least recently) sought to implement the DMCA to reasonable expectations within the scope of it's mandate.

But I also think the Google/YouTube are intentionally working around the limits of what the DMCA was intended to do, to their own advantage. But that's a separate issue.

As a YouTube content partner at different levels, I can see first hand how content owners at different levels of the food chain get treated differently and it doesn't have much to do with the DMCA as much as it has to do with leverage.

Where Viacom appears to be reaching, is by pushing the idea that the inability of the DMCA to adequately - prevent - infringing content from surfacing in the first place is the responsibility the service provider and not the content owner.

I see both sides, and what is always interesting to me is how the really nasty stuff (content wise) never see's the light of day on YT. Somehow they've figured out how to adequately - prevent - "obscene" content from showing up such as porn, extreme violence, etc.

I suspect if we woke up tomorrow and there were suddenly a "porn invasion" on YT heads would roll. But they've got that figured out... so all of these comments about "how could we possibly know what's infringing" seems thin to me when they do a pretty good job of figuring out how to filter what is "obscene".

I use the audio fingerprinting for one of my partner accounts and for the most part it works ok - it's a step in the right direction, but even a quick look around youtube and there are videos that explain easily how to circumvent it... now why isn't that a TOS violation unless Google/YT really only want the "appearance of compliance"?

If the same measures for Porn were applied to all copyrighted material I don't think there'd be much of an issue when the odd piece slips by the goalie for 24 hours.

But as it is right now YT is still filled with an alarming amount of infringing content and policing it (from a content rights holder point of view) becomes more and more time consuming and expensive. Eventually the cost of policing is more than the amount to create the product in the first place (or at least the margin). Either way game over.

I don't see how anyone wins in that scenario - for all the talk of how people could, would, or should be making money in the new web 2.0 world - no one other the rights infringers seem to be making money - which is only possible through the exploitation of works paid for by a third party and used to sell either bandwidth, advertising or both.

Well - that's how I see it at least - and I don't think either side in this case is going to be completely happy with the outcome when it's all over. I honestly don't know that the court even has the tools or authority to rule in a way that will truly make sense given the complexity.

I supposed the best the court can do is rule on how well YT had implemented the DMCA during the time frame in question and look at "intent".

Would love your thoughts.
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19th May 2010
Old 19th May 2010
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Quote:
Originally Posted by MusicAndFilmGeek View Post
But I also think the Google/YouTube are intentionally working around the limits of what the DMCA was intended to do, to their own advantage. But that's a separate issue.

...

I use the audio fingerprinting for one of my partner accounts and for the most part it works ok - it's a step in the right direction, but even a quick look around youtube and there are videos that explain easily how to circumvent it... now why isn't that a TOS violation unless Google/YT really only want the "appearance of compliance"?
Google's entire business model depends on the free availability of content - content that is stockpiled and managed by Google, that is, so that they can have ads attached to it. A "commons" characterized by targeted advertisements that become closer and closer to the appearance of the content itself.
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19th May 2010
Old 19th May 2010
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MusicAndFilmGeek,

Thanks for the well-thought out post. I just completed my JD and am taking the bar this summer, so I'm not quite ready to outgun anyone yet

I think you've hit the nail on the head on many of your points.

Viacom and thousands of others clearly see some benefit to using Youtube. As an avenue for revenue, it's obviously still in its infancy, but as an avenue for promotion, it is quickly becoming as important as other forms of traditional media.

On the other hand, we need to ensure that copyright laws continue to work to provide artists and distributors with the incentives they need to create high-quality work. America has been the home of an amazing body of art and entertainment for decades, enjoyed by billions across the globe, and the production of those works has coincided with a copyright regime that pre-internet has remained largely unchanged.

Previous disruptive technologies resulted in their fair share of messes, but the law eventually adjusted to a workable solution to balance the interests of content producers and consumers. We've had innovations like performance rights and mechanical licenses in response to radio and recorded music, just to name a few.

As both of us have noticed, however, the law continues to struggle with responding to the challenges of the internet. The biggest problem I see with complex statutory regimes like the DMCA is that they obscure the bigger picture, like we're discussing here. Courts get bogged down in discussions like "according to section A, subparagraph 3, a service provider as defined in chapter 9..." Courts also are very deferential to statutory language, reluctant to substitute their own wisdom for that of Congress. But the assumption is, as stated in the initial quote that I pointed out, that Congress carefully crafts its legislation, that the policy goals it seeks are inherent from the text, and that the law as a whole clearly reflects its intentions. Unfortunately, that has not been the case in copyright law over the past couple decades.

But it is what it is. It's difficult to predict how this lawsuit will play out. My guess is that Youtube will end up being required to take on a stronger role in policing content - incorporating and strengthening features like the audio fingerprinting technology you mentioned. It's simply too onerous to place all the burden of policing content on the content owners. Can't find the link now, but I've read that NBC Universal alone has three full-time employees on staff whose sole job is monitoring YouTube for unauthorized clips!

Automated systems for detecting infringement have different challenges than those that can ferret out porn and extreme violence. Those types of videos are apparent on the face - anyone knows something is pornographic just by watching it. Determining whether a clip is infringing isn't apparent on the face; it requires determining the ownership of the copyright and whether the user who is uploading is that owner or has authorization. I think, technology-wise, this could eventually be done automatically, but it's safe to say that without pressure from content owners, like this lawsuit, YouTube isn't going to take the time developing such mechanisms.

If the case settles before trial, I'd imagine Viacom would ask for something like this apart from any monetary payment. Even if the court finds that YouTube has been in compliance with DMCA requirements for safe harbors, that only shields them from monetary damages. A court could still issue an injunction, and courts have in the past crafted structural injunctions similar to what I mentioned above.

In my opinion, that would be the "best" possible outcome for this suit. Thoughts?
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20th May 2010
Old 20th May 2010
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Hi Terry -

Thanks for that. Good stuff and informative. What I'd like to see is a precedent that places more responsibility on the Host service, in this case YouTube.

The rub for me is that other User Generated Content sites, at least for Audio, seem to do a pretty good and legitimate job of policing infringing content - IF they have the WILL and INTENT to do so.

I don't think anyone can upload the Led Zeppelin, Pink Floyd or Beatles catalog of masters to Reverbnation or Soundclick for example and expect it to be there for long or to not have the account suspended.

I know that good Ol' GS here has the ability to block users based on IP addresses. Certain personalities (trolls) have been banned from the site pretty successfully.

It really can't be that hard for Google to determine that the same IP that is uploading a bedroom webcam vblog probably is NOT Warner Bros.

Would it really be that hard to have a B2B Portal for content owners that makes that content ID'd specifically to ONLY that user?

What I find frustrating in the YouTube vs Viacom case is the neener, neener aspect of it in the cat and mouse game. For me - it IS about will and intent. And I think that is what the YouTube vs Viacom case is _really_ about.

YouTube certainly is not naive that if 15 people on 15 different IP's are all uploading SNL Clips that the likelihood of that being legitimately from NBC is about nill.

That's my frustration and I hope that the YouTube vs Viacom outcome in some way restores a sense of fairness and balance to the current situation.

YouTube's largely "blind eye" catch them if you can approach is woefully weak in the context of what's actually going on. At the same time I also believe that the four benchmarks of Fair Use can be safely protected.

For me the solution works for YouTube the same way it does for Itunes - B2B solutions. Anyone can get their music on Itunes today (via Tunecore for Example) as easily as they can get a video on YouTube - the difference is, protections are in place at Itunes that prevent me from Uploading the Led Zeppelin catalog as if it were my own.

Your Thoughts?
#7
20th May 2010
Old 20th May 2010
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I agree on the B2B aspect, I was actually thinking of something similar, along the lines of Twitter's "Authorized User" accounts for celebrity users.

And yeah, I think the case does come down to the cat and mouse aspect of YouTube's model regarding infringement. The DMCA safe harbors were designed to protect ISP's, forums, and other "dumb pipe" hosts. They shouldn't be liable for the occasional user who uploads infringing content. But when you build a site whose sole purpose is allowing thousands of users to upload video, you have to be aware that you're going to have infringement on a mass scale.

YouTube shouldn't be able to act like an ostrich with its head in the sand when it comes to policing infringement. If it can't feasibly monitor all the video being uploaded, it needs to develop technological approaches to ferret out what's authorized and what's not. The audio fingerprinting system it already has shows this is possible; the technology might not be there yet for video fingerprinting, but Google needs to be working on it if it wants to run a site like YouTube. Content providers shouldn't have to devote all their resources to flagging unauthorized videos every time they produce a new episode of a television show or what have you.
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23rd June 2010
Old 23rd June 2010
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23rd June 2010
Old 23rd June 2010
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what can I say... hello appeals... this one sentence is the entire issue:

Quote:
Legal scholars have said that the outcome of this landmark suit could well determine who gets to profit the most from content: the people who pay for its creation, or the people who help disseminate it over the Web.
who gets to profit the most the people who make it or the people who steal it...

terry - how far could this go? supreme court? no?
#10
23rd June 2010
Old 23rd June 2010
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Only had a chance to skim the order (http://static.googleusercontent.com/...j_decision.pdf), but it seems to come down to what kind of knowledge will eliminate the safe harbors of the DMCA, which shields online service providers from secondary liability for copyright infringement. Youtube argued that it was protected unless it had actual knowledge of specific incidences of infringement. Viacom argued that general awareness of infringement is enough. The court sided with Youtube:

Quote:
[The DMCA's] establishment of a safe harbor is clear and practical: if a service provider knows (from notice from the owner, or a "red flag") of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is "ubiquitous" does not impose a duty on the service provider to monitor or search its service for infringements.
#11
23rd June 2010
Old 23rd June 2010
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Quote:
Originally Posted by MusicAndFilmGeek View Post
what can I say... hello appeals... this one sentence is the entire issue:

[URL="http://news.cnet.com/8301-31001_3-20000683-261.html"]

who gets to profit the most the people who make it or the people who steal it...

terry - how far could this go? supreme court? no?
I want to take a look at this in more depth, as there were other issues besides the knowledge requirement of the DMCA safe harbor at play that I didn't look at yet.

In the meantime, I'd keep an eye out for Ben Sheffner's blog, as he typically has high quality analysis of copyright issues: http://copyrightsandcampaigns.blogspot.com/
#12
24th June 2010
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24th June 2010
Old 24th June 2010
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#14
24th June 2010
Old 24th June 2010
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did anyone doubt this outcome?

no really.
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25th June 2010
Old 25th June 2010
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another crushing blow for the mad mad world of M&FG
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25th June 2010
Old 25th June 2010
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LOL... get yer licks in while you can... do you do anything around here other than pick fights, and post nonsense?

why don't you bring that over here:
http://www.gearslutz.com/board/music...announced.html

Quote:
Originally Posted by mobius.media
"Fifth, we must secure our supply chain. To achieve this most important goal, we will take a close look at the unique problems posed by foreign-based websites and other entities that provide access to counterfeit or pirated products, and develop a coordinated and comprehensive plan to address them. We will make sure our law enforcement has the authority it needs to secure the supply chain and also encourage industry to work collaboratively to address unlawful activity on the internet, such as illegal downloading and illegal internet pharmacies."

That's the big one. It's going to take a lot of drive to make that happen. But it's good to see they are at least acknowledging it needs to be done.
oh wait... nevermind... I see you've been there... try again...
#17
26th June 2010
Old 26th June 2010
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do i do anything?

well what i do is work every week and cover costs all for free to provide music hosting for unsigned musicians & hobbyists (and very soon, free websites, and after that retailing of their music).

sometimes, occasionaly, they write and say they used the system to get a job


i'm not the bad guy round here, just a little cog in the machine trying to do something positive & i have every right to challenge your crass right wing fascist nonsense.



now - as to your proposal (or support for a proposal) that websites should be legaly responsible and sue-able for user added content


are you totaly daft?


so we then see that legal precendent move to record deals - it'd be "bye bye" to all record labels, cos that indemnity clause wont be valid anymore and what if an artist sneaks some copyright infringing sample thru with a release?


just take GS alone - Jules would have to pay a barage of moderators to filter all attachments or he might get GS closed down by legal financial crushing. wouldnt be much of a forum then would it?

and what about embedded 3rd party hosted content? already your camp has set a system in motion which proposes a group/site/individual can be carted off to jail without trial or fined to death for simply listing links to content - so that precedent is already kinda being set

doesnt bode well for web sites & isp's does it?

we'd wave goodbye to all social music sites, and all the smaller startup sites which allow musicians to retail their work. You can wave goodbye to the likes of soundcloud too, and what about app developers for facebook?

then there's the new emerging market for mobiles - bye-bye to that too

do you see how crackers you sound?
#18
26th June 2010
Old 26th June 2010
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It's important to note that Viacom lost under current DMCA law.

That law was signed in back in 1998 and places minimal responsibilities on the part of service providers to reduce piracy.

It is not the job of judges to create new laws, but rather only to enforce the existing ones.

As Congress looks to update digital laws, verdicts like this may well change.
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26th June 2010
Old 26th June 2010
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Quote:
Originally Posted by 7161 View Post
i'm not the bad guy round here, just a little cog in the machine trying to do something positive & i have every right to challenge your crass right wing fascist nonsense.
so protecting the rights of musicians to get fair compensation from their labor is fascist? that's an interesting perspective you have...

Quote:
Originally Posted by 7161 View Post
do you see how crackers you sound?
crackers enough to notice that somehow both youtube and gearslutz are not overrun by porn... hmmmmm... somehow with the proper will and intent that got figured out pretty easily...

and speaking of GS why don't you post some rapidshare links here to the waves bundle... go ahead... who's going to stop you? who's going to catch you? what's gonna happen...

go ahead... show me what happens when a rapidshare link to waves is posted on gearslutz, let's test your theory... show me....

thanks
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#20
26th June 2010
Old 26th June 2010
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Quote:
Originally Posted by 7161 View Post
there are two kinds of people in this world my friend
those with loaded guns
and those who dig
you dig
and once again without the ability to produce a response to my reply, you resort to insults... I suspected as much.
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#21
26th June 2010
Old 26th June 2010
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Quote:
Originally Posted by 7161 View Post
oh no, beleive me i havent even begun insulting you sweetheart!
now get digging... i'm hungry.
how about posting a rapidshare waves link here on GS tough guy, let's see what happens? I'm won't hold my breath... lol...
#22
27th June 2010
Old 27th June 2010
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Seems to me, all the 'FREE' proponents are either children... or have the mentality of them...

grow up
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27th June 2010
Old 27th June 2010
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Quote:
Originally Posted by 7161 View Post
well what i do is work every week and cover costs all for free to provide music hosting for unsigned musicians & hobbyists (and very soon, free websites, and after that retailing of their music).
But you have a financial interest in selling gear through your site?

Did you get permission to use all those copyrighted images promoting your service?
About 7161 music forums
#24
27th June 2010
Old 27th June 2010
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Quote:
Originally Posted by AwwDeOhh View Post
Seems to me, all the 'FREE' proponents are either children... or have the mentality of them...

grow up
Or they simply have a different opinion than you. How dare they!
#25
27th June 2010
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Quote:
Originally Posted by Neenja View Post
Or they simply have a different opinion than you. How dare they!
whatever..
7161 deleted all his comments...
#26
29th June 2010
Old 29th June 2010
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Slightly off topic, but this was just announced:



Looks promising, no?
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#27
12th August 2010
Old 12th August 2010
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Viacom's billion-dollar lawsuit lives on

Quote:
Viacom said at the time, "We intend to seek to have these issues before the US Court of Appeals for the Second Circuit as soon as possible." The company was not allowed to file an appeal when the opinion appeared because the judgment had not been officially entered by the court.

That happened yesterday; today, Viacom appealed to the Second Circuit.
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#28
5th April 2012
Old 5th April 2012
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#29
5th April 2012
Old 5th April 2012
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Quote:
Originally Posted by rack gear View Post
let the screaming begin...
Rack, buddy, this catch-phrase is showing some wear-and-tear by now.

American ISPs to launch massive copyright spying scheme on July 12
Quote:
Originally Posted by rack gear View Post
Jack White-Downloading had Cheapened Music
Quote:
Originally Posted by rack gear View Post
that's changing... come july... the eff already have their panties in a wad over the copyright alert system, aka, six strikes ISP policy going into effect.

let the screaming begin... also many artists are lending their support to the occupy movement with upcoming charity records. occupy is essentially a labor movement, artists rights are essentially a labor movement... this could get very interesting, very fast.
Billy Corgan - No Money In Music Now
Billy Corgan - No Money In Music Now
Quote:
Originally Posted by rack gear View Post
let the flaming nonsense begin as to why artists don't deserve to be paid...
Megauploads closed down
Quote:
Originally Posted by rack gear View Post
White House wants new copyright law crackdown
Quote:
Originally Posted by rack gear View Post
we'll see about that - until they have to - let the screaming begin... the wild west wasn't wild forever, and neither will the internet be...
Report Corrected, Piracy up 20%
Quote:
Originally Posted by rack gear View Post
let the spin begin... lol.
And most of those are just in the past few weeks!

Okay okay, just having a little fun. I thought I had seen that phrase a couple times recently. I was more right than I knew!

More on topic: I wonder if this case will ever see a resolution. I'm starting to doubt it. Maybe it will end when the screams are finally allowed to begin.
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#30
6th April 2012
Old 6th April 2012
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Quote:
Originally Posted by aroundtheworld View Post
Rack, buddy, this catch-phrase is showing some wear-and-tear by now.

American ISPs to launch massive copyright spying scheme on July 12


Jack White-Downloading had Cheapened Music


Billy Corgan - No Money In Music Now


Billy Corgan - No Money In Music Now


Megauploads closed down


White House wants new copyright law crackdown


Report Corrected, Piracy up 20%


And most of those are just in the past few weeks!

Okay okay, just having a little fun. I thought I had seen that phrase a couple times recently. I was more right than I knew!

More on topic: I wonder if this case will ever see a resolution. I'm starting to doubt it. Maybe it will end when the screams are finally allowed to begin.
what can I say? there's been a lot of screaming!

this case is the digital era's "betamax" case, it could go all the way to the supreme court and I would not be surprised if it did...
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