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June 23, 2010

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Hannibal Travis

Isn't the issue of storage with performance or transmission resolved by the legislative history in the first 22 pages of the opinion? I refer in particular to the House and Senate Reports' statements that 512(c) covers situation where a notification of claimed infringement is directed at a service provider's site or material on it, and gives as an example "offering audio or video [which] may be unauthorized public performance" of a song or movie, in addition to the creation of an unauthorized copy of such a work. The print-on-demand activities of printing and overnighting would arguably not occur "by reason of the storage at the direction of a user" within the meaning of 512(c).

Tim Lee

Your print-on-demand hypothetical doesn't seem parallel at all. We already have specific and detailed caselaw about what copyright does and doesn't allow in the book printing business. Printing and distributing a printed book is an inherently labor-intensive process, and so it's not unreasonable to expect that book printers bear some responsibility if their employees print and distribute books without the authorization of the relevant copyright holders.

YouTube's service, on the other hand, is completely automated. Complete automation means that the balance of costs and benefits is very different: holding YouTube responsible for the actions of its users could dramatically raise the costs of offering the service. And so Congress enacted DMCA section 512 in reaction to these concerns.

To analogize YouTube to a print-on-demand service is to completely ignore the distinctive characteristics of online services that caused Congress to enact the DMCA safe harbor in the first place. You might think Congress struck the wrong balance, but it's not hard to figure out how to draw the line between YouTube and a print-on-demand service: one is automated, while the other is not.

Daniel Bahls

While I would consider the back-up digitization of a book to be fair use of the book, the distribution of the book becomes a different matter all together.

In that light, the user who scans and backs the book up is not infringing the copyright anymore than the user who uses an private, off-site data backup infringes the copyright on any eBooks in the backed-up data. There would be no infringement--except that the company took an action that caused the infringement.

cramer pelmont

YouTube's service, on the other hand, is completely automated. Complete automation means that the balance of costs and benefits is very different: holding YouTube responsible for the actions of its users could dramatically raise the costs of offering the service. And so Congress enacted DMCA section 512 in reaction to these concerns.

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