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saruba Peon

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#1

Hi everybody, I'm new here so first of all I'd like to say I'm glad to have discovered this great forum. Also, sorry if my english is not brilliant, I'm not a native speaker.

I'm working on a project that could fall under the category of this so-called 'youtube clones', a video community with user-generated content. This website is targeted to a very specific public, let's say people who go abroad and stay with a host family. My worries are not related with copyright issues, since the videos will be filtered before being published, what I'm actually wondering is what kind of legal issues I could face (if any), assuming that in those videos will probably appear members of the family (kids, for instance), or other people who didn't give the consent to publish the video on the net.
Also, I'm from Spain but the website will be hosted in US Host, what does this implicate?

IMO the uploader is responsible for his uploads, and after reading through ToS from YouTube, Vimeo and other similar services, I understand that these sites doesn't take any responsibility for the content published by their users (including comments), furthermore, they explicitly state that aren't able to filter the content and even that you can "expect" (it is possible) to encounter offensive material since they can't manage this issues until somebody complaints.

It's clear to me that I'll have to draw up a thorough ToS with all these issues, but, is there anything that I'm missing? Is there any violation that could lead to anything further than the deletion of the unauthorized videos from the website?

Really appreciate your time,
thank you.

saruba, Aug 18, 2009 IP

optimizedads Peon

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#2

I believe you are correct that it's the users responsibility. Just read Youtubes terms of service and modify it to your usage and I suspect you'll be fine.

optimizedads, Aug 19, 2009 IP

Nonny Notable Member

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#3

First off, you should be aware that YouTube is not immune from lawsuits for copyright infringement. Viacom sued YouTube for $1 BILLION in 2007:
http://en.wikipedia.org/wiki/Viacom#Copyright_complaints_against_YouTube

Even if you are legally in the right, it costs $$$$$$ and can take years to defend yourself in court .

To be safe, you should to read up on the DMCA safe harbor provisions - that's what YouTube et al use to try to shield themselves from liability. It's a bit more involved than just posting a terms of service. There's some info here:

http://www.chillingeffects.org/dmca512/faq.cgi#QID125

Question: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?

Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc., the court refused to extend the safe harbor provisions to the Napster software program and service, leaving open the question of whether peer-to-peer networks also qualify for safe harbor protection under Section 512.

There are four major categories of network systems offered by service providers that qualify for protection under the safe harbor provisions:

* Conduit Communications include the transmission and routing of information, such as an email or Internet service provider, which store the material only temporarily on their networks. [Sec. 512(a)]
* System Caching refers to the temporary copies of data that are made by service providers in providing the various services that require such copying in order to transfer data. [Sec. 512(b)]
* Storage Systems refers to services which allow users to store information on their networks, such as a web hosting service or a chat room. [Sec. 512(c)]
* Information Location Tools refer to services such as search engines, directories, or pages of recommended web sites which provide links to the allegedly infringing material. [Sec. 512(d)]
Click to expand...

Question: What does a service provider have to do in order to qualify for safe harbor protection?

Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].
Click to expand...

Question: What are the criteria a service provider must satisfy in order to qualify for safe harbor protection under Subsection 512(a) of the Digital Millennium Copyright Act?

Answer: Subsection 512(a) provides a safe harbor for service providers in regard to communications that do not reside on the service provider?s system or network, but merely pass ?through? the system or network. Any copies of the communications on the system must be temporary, i.e., ?intermediate or transient.?

A service provider must satisfy the following critical elements in order to qualify for the ?safe harbor? or protection from liability provided by subsection 512(a) (note that subsection 512(k)(1)(A) defines ?service provider? as used in subsection 512(a)):

(a) The service provider is an entity offering the transmission, routing, or providing of connections for digital online communications [512(k)(1)(A)];
(b) The service provider did not initiated the transmission of the material [512(a)(1)]
(b) The transmission, routing, provision of connections, or storage is carried out by an automatic technical process [512(a)(2)];
(c) The Internet user, not the service provider, must select the origination and destination points of the communication [512(a)(3) and 512(k)(1)(A)];
(e) The service provider must not modify the communication selected by the Internet user [512(a)(5)];
(f) The communication is transmitted ?through? the system or network of the service provider [512(a)(2)];
(f) No copy of the communication is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients [512(a)(4)]; and
(g) No copy is maintained on the system or network in a manner ordinarily accessible to anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, and provision of connections [512(a)(4)].
Click to expand...

Be sure you understand all of it before your site goes live.

Last edited: Aug 20, 2009

Nonny, Aug 20, 2009 IP

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saruba Peon

optimizedads Peon

Nonny Notable Member

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