[A2k] User Generated Content Principles

[Andrea Glorioso]

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Dear Mark, dear all,

>>>>> "lists" == lists  <lists@markperkins.info> writes:

    > As a whole, the Principles move away from 'Notice & Take Down'
    > procedures provided by US law, to a 'block initial upload &
    > notice'; ie. it places the onus on the uploader to prove (in
    > court? to the Website owner? to the copyrightholder?) that the
    > use is fair use. Given that uploaders tend to be individuals,
    > while the Websites (Daily Motion, My Space, Microsoft, Veoh) and
    > Copyright Owners (CBS, Disney, Fox, NBC-Universal, Viacom)
    > involved tend to be mega-corporations, I doubt that fair-use
    > will get a fair hearing.

For what it's worth, there would be a similar trend away from "notice
and takedown" in the European Union, where the "e-Commerce Directive"
has introduced several exemptions to intermediaries' liability - the
"hosting", "caching" or "mere conduit" exemptions.

If an intermediary - technically speaking, a provider of an
"information society service", a list of which is provided in another
directive - takes an active role in pre-filtering content, my opinion
is that such intermediary could not use the exemptions above as a
defense.

The question is whether using an automated system, rather than human
intervention, wouldn't have the same legal effect, either on the
intermediary itself or on those who provide the filtering software.

Incidentally, I believe that network operators which are asking for
the possibility to aggressively filter/regulate traffic on their
networks, especially when such filtering is not based only on traffic
data (e.g. packet headers) but also on traffic content (i.e. "deep
packet inspection") would also lose the possibility to use the above
exemptions as a defense.

Ciao,

--
      Andrea Glorioso || http://people.digitalpolicy.it/sama/cv/
          M: +39 348 921 4379	     F: +39 051 930 31 133
       "Truth is a relationship between a theory and the world;
       beauty is a relationship between a theory and the mind."
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