Mark Cuban & the DMCA
March 26th, 2007 § Leave a Comment
Mark Cuban, the guy who sold streaming video and audio site Broadcast.com to Yahoo in 1999 (unclear if Yahoo’s failure to own the space is the fault of Broadcast.com or Yahoo) and later bought the Dallas Mavericks, really has it out for Google and YouTube. Cuban has branded himself a defender of copyright and anti-piracy, both reasonable positions, but he consistently doesn’t give the whole picture to his hordes of fanboys.
Case in point: I came across one of his posts today while researching the DMCA definition of OSP (online service provider). The legislation contains no real definition and courts have historically treated it as open-ended. Cuban thinks that the DMCA shouldn’t apply to websites since they weren’t specifically included within the definition of an OSP in the legislation – specifically, he thinks YouTube isn’t an OSP and shouldn’t be able to get into the DMCA safe harbor. This is an interesting position to take, but Cuban doesn’t mention the fact that if a court were to take this position, it would be go against the majority (if not all) other courts that have been faced the same situation. Hendrickson v. eBay, the flagship DMCA case, does just this and treats eBay as an OSP.
It’s possible that a court could look at YouTube and the DMCA and say that they are not an OSP, but this would be a major reversal of past precedents. Granted, the reviewing court may not be bound by the precedent set (Hendrickson was in federal district court in CA), but courts are far more likely to look to non-binding precedents before they dig into legislative history, as Cuban suggests they should.
Sorry for the law nerd rant.
