EFF Sponsored YouTube Debate

Earlier this year at ETech, EFF attorney Fred von Lohmann debated Mark Cuban. The video of the debate is below. For the record, I tend to think the DMCA safe-harbor provision is beneficial to technologists but would like to see the case law strengthen to remove the doubt some have as to whether or not services like YouTube qualify as ISPs.

I think Mark Cuban has a fundamental misunderstanding of the statute and would have loved to see Fred demonstrate this, but the nature of the debate was too relaxed for that to be appropriate.

Nowhere do I see in the DMCA that an ISP needs a "customer relationship" with the user as Cuban suggests. In fact, here is Section 512 of the DMCA:

(a) Transitory Digital Network Communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

(5) the material is transmitted through the system or network without modification of its content.

The only possible problem I can see with YouTube is that they alter the content to encode it properly and that might interfere with point 5. This was the contention in the Universal v. MySpace case which was filed a while back. However, since it is automated and does not modify "the content" only the form, I think YouTube is safe.

Anyways, here's the debate: