Oppositely, broadcasters such as NBC etc have a duty to establish the copyright status of the work they broadcast before they broadcast — one does not broadcast a copyrighted song unless positive one has cleared the rights and paid the appropriate fees. If they did not, they would be sued and heavily penalized both to compensate and to encourage proper behavior in the future.

YouTube etc… currently have no such restriction and are immune from litigation. All that is required them is to stop distributing, even if they have distributed many many times and generated revenue. Interestingly, they advertise themselves as a Broadcaster, and are for all intents and purposes, no different than a cable channel. This places traditional media channels at an unfair competitive disadvantage. Of course I agree with your assertion that it is impractical for YouTube to check the copyright status of each video uploaded; but your argument is predicated on the idea that YouTube has a right to exist. Perhaps the idea of a for-profit video hosting site is simply untenable, and all site’s should be forced to become non-profits, or terminated. Perhaps there is a societal benefit to allowing this to continue, but I guess that’s the Supreme Court’s call — I’m no lawyer but I half wonder if there’s some form of constitutional claim against the current interpretation of Safe Harbor (ie government taking of private property without compensation).

I have for a long time thought site’s like Google / YouTube do not qualify for Safe Harbor for basic definitional reasons — I haven’t read the exact language in a while, but for example, by adding branding and advertising to any video posted as well as the general interface for the site, YouTube is not transmitting the data unmodified as called for in the Safe Harbor provision. It is incredibly difficult to argue that I somehow requested an ad for whatever YouTube etc attempts to serve me, when I click on a link for a Keyboard Cat video. I requested Keyboard Cat and YouTube modified the data.

It sort of escapes me how this has gone on until now, and that the courts seem to have chosen to interpret the Safe Harbor provisions so loosely.

I’m not really advocating the behavior of the RIAA, MPAA, or anyone else connected to big content or big media, I just think that its time to start realizing that the big reason web services companies have been so successfully disruptive to traditional media and content organizations, is because they haven’t been paying the true cost of doing business, and have been playing by a totally different set of rules, often externalizing costs traditional brick and mortar shops would have onto content producers, broadband providers, and consumers.

Google applies Safe Harbor / Machine exemption as its response to everything; their entire business model is based on it, and its truly insane. Granted I don’t expect it to change, but the law was really not intended for that; it was to shield infrastructure level network operators and providers, not top-layer web applications.

Just my two cents…

At some point you have to weigh the ramifications of attacking the very people who have bought the content. And to protest this, people popup with a new fake identity every week and repeat the same infractions at more expense to the host and copyright owners.

Nobody wants to take responsibility for wasting time and money. Too lenient of DMCA safeharbor, and the infringers get away with damn near murder, and too strict leads to stories like this where there are either multiple copyright owners, or copyrights were obtained from mergers, and the lawyers sending out the DMCA takedowns don’t really know what they are requesting to be removed at all. Throw in the copyright differences in various countries and you have something that is straight up money pit.