Shouldn't Intent Be A Part Of Criminal Law?

from the how-many-felonies-have-you-committed-today? dept

We just wrote about a grandmother getting arrested for buying cold medicine, without realizing a state limit on how much pseudoephedrine could be bought in a single week. Even though everyone involved admits that this grandmother wasn't in the meth making business, the police still felt the need to go ahead with the arrest. In the comments, one of our readers, BobInBaltimore, noted that a big part of the problem is the fact that we've pretty much done away with the concept of "intent to commit a crime" as being a prerequisite for establishing criminality.

Indeed, the WSJ just had an opinion piece all about the how modern technology has made accidental criminals out of all of us, based on the new book Three Felonies a Day: How the Feds Target the Innocent. As you can probably guess, the thesis of the book is that modern technology, combined with an increasingly confusing, misunderstood or just downright ridiculous set of laws, means that everyone is committing felonies all the time, entirely without meaning to do so. In the opinion piece, it's argued that we really need to bring back the "intent to commit a crime" requirement, as it would put an end to a lot of these arrests. It makes a lot of sense, which is why it'll probably never happen.

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Court Ruling In Veoh Case Could Be A Big Boost To YouTube Over Viacom

from the a-good-decision dept

A judge has ruled that online video hosting site Veoh is not guilty of copyright infringement for videos uploaded by its users. The judge made the proper ruling here, noting that the DMCA's safe harbors protect Veoh. The lawsuit was brought by adult video entertainment firm Io, who was upset that Veoh's users kept uploading clips from its films. As the judge properly noted, Veoh follows all the rules necessary under the DMCA to avoid liability (this doesn't mean that the individuals doing the uploading aren't liable, however).

While this may seem like a small case, it is quite similar to Viacom's infamous lawsuit against YouTube/Google. Considering that YouTube follows the DMCA's rules in a similar manner to Veoh, this ruling suggests that YouTube is also protected by the DMCA safe harbors, just as many had stated from the beginning. The key issues raised by Io (and also raised by Viacom) is that these sites lose their DMCA safe harbors because they take action on the content, often transcoding the content from one format into flash. However, the judge in the Veoh case trashed that argument pretty easily:

Here, Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. Veoh preselects the software parameters for the process from a range of default values set by the third party software... But Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users

The folks over at Google are, understandably, pretty happy about this ruling, which confirms their position that YouTube is protected: "It is great to see the Court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights."

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Yes, DMCA Safe Harbors Apply To Websites

from the not-this-again dept

Every once in a while, when discussing the DMCA's "safe harbors" someone shows up in the comments to insist that the safe harbors were never intended to apply to websites, but merely to ISPs. Tim Lee does a nice bit of work absolutely destroying that assertion, by pointing out how it doesn't make sense given the language of the law which clearly is designed to apply to websites as well as network providers (otherwise, as he notes, why would they ever suggest content would have to be "removed" rather than just "blocked").

But, more importantly, the focus should be on the overall intent of the law beyond just the specific scenarios on the mind of those who wrote it. Even if it's true that those who crafted the language weren't "thinking" about websites when they wrote it, the intent of the safe harbor is clear, and it should apply to websites as well as network providers. Why? Because the whole point of safe harbors was to make sure liability was properly applied to those who actually infringed, rather than an easy-to-target company. That it was the network providers who raised this concern in the first place doesn't mean that the same thinking wouldn't apply to websites as well. And, on top of that, while the safe harbors of the CDA (for things like defamation) haven't been harmonized with the DMCA's safe harbors -- the purposes are nearly identical, and the courts have granted extremely wide coverage of the CDA safe harbors, so there's no reason to think that they wouldn't apply the same broad interpretation to the DMCA as well.

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