Originally Posted by FightThisPatent

10. Do Not Receive A Financial Benefit Directly Attributable To Infringing Activity Within The Company's Control

If an online service provider has the right and ability to control infringing activity, it is eligible for the safe harbor if it does not receive a financial benefit directly attributable to such infringing activity. The "direct financial benefit" issue is complex and necessarily dependent on applicable facts and circumstances. Although this issue still remains to be clarified by the courts, Viacom has made arguments regarding direct financial benefit in its lawsuit against YouTube. To the extent that the Viacom v. YouTube case results in a decision, this issue would be one of the more interesting DMCA legal questions the case addresses.

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whether a legit community site that allows user uploads or an illegal tube site, both generate revenue from the advertisement around the content.

some illegal tube sites offer a "premium" version that gives access to longer videos, better quality, etc.. this would certainly violate DMCA safe harbour provisions for a paid-membership model using stolen content (oh the irony of paysites who used usenet content inside members areas and now crying foul about DMCA)

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takedowns have to occur in a "reasonable period of time"... 24-72 hours.

content producers could coordinate their DMCA notices to do a "DMCA bombing" at the same time.

you would have to have a shared IP attorney ready to then file a lawsuit if the DMCA process wasn't followed. Having a large amount of complaints that were disproportionate to the "legal" content on a tube site, could show that the site owners do know about infringing material.


Fight the YMCA!