I really hope he wins this case, but there's an awful lot of naiveity going around.
Comment I read on that video page ended "Leave the poor guy and his wife alone!" They're millionaires, and there's really no way to paint this as "poor Kim" - I can very well believe that based on his knowledge and his legal advice he expected to be safe legally, and was perhaps right, but the idea that he actually didn't know what MU was being used for, or that he cared about preventing it, is laughable. Look at his track record as a person, he's always prioritised himself (money, ego etc.) over legality.
> Comment I read on that video page ended "Leave the poor guy and his wife alone!" They're millionaires, and there's really no way to paint this as "poor Kim"
His douchebagginess aside; What does being a millionaire have anything to do with the situation? If someone is wronged for some reason people aren't allowed to have pity on them because they have a lot of money? That's kind of silly...
The reason I mention his wealth is not to suggest that it means he deserves less than somebody with no money - what I mean is that he flirted with the wrong side of the law, and he did it for money not morals, I'd care a lot more about him if he was fighting for the law to change, not just fighting to keep his cars.
I haven't really been able to get a good shake on what the law will be for this situation, or what I believe the law should be here.
That having been said, its hard to think that they were in compliance with 17 USC §§ 512(c)(1)(a)(ii) - (iii) in particular. Continued safe harbor protection requires that mega-upload:
(i)
does not have actual knowledge that the material
or an activity using the material on the system
or network is infringing;
(ii)
in the absence of such actual knowledge, is not
aware of facts or circumstances from which
infringing activity is apparent; or
(iii)
upon obtaining such knowledge or awareness,
acts expeditiously to remove, or disable access
to, the material;
I think it falls to a jury to determine if a 'reasonable person' would find that infringement was apparent to the mega-folks, but I don't think the "golly gee sucks, I just didn't know" defense is going to get them very far, especially in light of the emails in the indictment.
Respectfully, I believe you are wrong that the "golly gee shucks, I just didn't know" defense will be applied here. Under that statute, you see subsection a (parts i, ii, and iii). However, it goes on to explain in subsection b:
(B) 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; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Under this, the only debate is section B, which is that this individual profited explicitly off of copyright material. He can argue he profited off of the service, and it was not being serviced for the use of explicitly copyrighting material.
As for section C, obviously in the article he not only took measures himself to try to stop copyright material once reported, but he even ALLOWED companys to do it themselves.
The jury can find this more than reasonable. And it can be argued from a legal point of view, moral or immoral. The defense is based on the statues protection, not the kindness of the courts.
Cases interpreting the “knowledge disqualifier” include Perfect 10 v. CCBill, 488 F.3d 1102, 1114 (9th Cir. 2007) (noncompliant notices do not count toward knowledge, use of “illegal” or “stolen” in ___domain name does not create red flag knowledge for hosting service); Io Group v. Veoh Networks, 586 F.Supp.2d 1132, 1148 (N.D. Cal. 2008) (“[A]pparent knowledge requires evidence that a service provider turned a blind eye to ‘red flags’ of obvious infringement.”); Corbis v. Amazon, 351 F. Supp. 2d 1090, 1108-09 (W.D. Wash. 2004) (neither general knowledge of infringement on the site nor third party notices are not enough to constitute a “red flag”); Hendrickson v. Amazon, 298 F. Supp. 2d 914, 917 (C.D. Cal. 2003) (Amazon lacked prospective knowledge of infringing DVD sales, even after rights holder informed it that the title in question had never been released on DVD); Hendrickson v. eBay, 165 F. Supp. 2d 1082, 1093 (C.D. Cal. 2001).
That said, MU might, in fact, be liable if it can be shown that they were aware of specific acts of infringement and did nothing, which some of the emails may, in fact, establish. After that, there's some question of how broadly the loss of safe harbor applies. I'm not sure that you lose all safe harbor protections for all infringement if you fail any particular red flag test. It seems to me that you ought to lose safe harbor only for those specific acts of infringement. But IANAL, and I'm not sure that point has ever been ruled on, so maybe we'll find out.
> but the idea that he actually didn't know what MU was being used for
Is that a reason to be held liable? Isn't the whole point of the DMCA that we realize that every open service that transfers bits will be used illegally by some, so as long as the service provider acts on takedown notices they cannot be held liable for the actions of their users?
> or that he cared about preventing it
They had a special tool for content creators which gave them direct delete access to everything on MU. This goes above and beyond the DMCA.
Except this "special tool" did no such thing. It invalidated URLs pointing at content. The same content was kept accesspible via other URLs, and uploaders knew how to exploit this. Furthermore, the number of URL invalidations was capped, and one of the seized emails reveals that this cap was determined by the amount of countent they could risk to lose without affecting their revenue.
Having general knowledge of illegal activity is not the same has having actual knowledge that specific instances of specific files infringe on copyright.
The entire point of the DMCA safe harbour provisions is that a provider should not need to act on the mere general knowledge that some people sometimes use their services for illegal purposes.
"poor" is surely being used in the 'has been mistreated' way rather than 'has no money' way.
Whether he knows what his service is used for or not is surely irrelevant though. The ISPs know that piracy goes on over the internet, so why aren't they equally liable?
Computer manufacturers know that computers are used to download copyrighted content. So why not go after computer makers as well. They're enabling piracy!
Comment I read on that video page ended "Leave the poor guy and his wife alone!" They're millionaires, and there's really no way to paint this as "poor Kim" - I can very well believe that based on his knowledge and his legal advice he expected to be safe legally, and was perhaps right, but the idea that he actually didn't know what MU was being used for, or that he cared about preventing it, is laughable. Look at his track record as a person, he's always prioritised himself (money, ego etc.) over legality.