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youtube does not allow downloading of copyrighted videos, however

third party software exists that...
youtube does not allow downloading of copyrighted videos, however third party software exists that circumvents that limitation. What would be the best way to show this is a DMCA violation in a motion to quash?
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7/18/2013
Law Educator, Esq.
Category: Legal
Satisfied Customers: 121,098
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Thank you for your new question. Please do not forget to click on excellent feedback on your other questions as that is the only way experts get credit for the time spent helping you.

You have to show your video was subject to some type of copyright and that it was downloaded without consent. However, the courts have ruled in cases where things are published on the internet for view that they are able to be obtained by subpoena, so you have to also show he did not obtain a subpoena to download the information.



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Law Educator, Esq.
Category: Legal
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Customer reply replied 4 years ago

Have the courts recognized services like youtube, netflix, hulu, etc as online movie theaters yet? Which would make it a felony to copy and distribute videos obtained.

Customer reply replied 4 years ago

How do I show he didn't obtain a subpoena? The video was obtained by a witness for the plaintiff and handed over to the plaintiff's lawyer.

No, the courts have yet to recognize youtube as a online movie theater, it is considered a social media sharing site and those posting their videos are consenting to parties watching them for free and they agree merely that anyone posting to the site has permission to post the material.

The subpoena would be in the court records. If it was not the other party in the case, but a third party witness who obtained the material, the courts hold typically this is still admissible as evidence as long as the party to the case did not obtain the material illegally, even though you can separately pursue the third party for violating the DMCA.
Law Educator, Esq.
Category: Legal
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Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer reply replied 4 years ago

Ok, I put in a motion to compel plaintiff to provide a duplicate of the disc the video was on. He was ordered to do so, but gave me a data disc with thevideo, rather than a duplicate of the DVD with menus which he intends to use.


1. This would qualify as the plaintiff obtaining the video in violation of the DMCA, correct?


2. This is non-compliance with the courts order, correct?

No, this would not qualify as him violating the DMCA, since you do not know that the plaintiff obtained it and it could have been obtained by a third party.

It is a violation of the court order and you need to file a motion for an order to show cause for contempt for him not providing you the disc you requested as ordered by the court.
Law Educator, Esq.
Category: Legal
Satisfied Customers: 121,098
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Customer reply replied 4 years ago

I was going to file a motion to dismiss, can you explain this motion to show cause for me?

The motion for an order to show cause is asking the court to issue a contempt of court order against the party for not complying with the court order. You ask for dismissal in our order to show cause motion and you also ask alternatively for them to exclude the evidence for the plaintiff's failure to provide you the exact copy as ordered.
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Customer reply replied 4 years ago

So it is called "MOTION FOR AN ORDER TO SHOW CAUSE" and in the body I ask for a contempt of court order, etc? With a discripttion of disc in support?

Thank you for your response. Sorry for the delay, I was out of town with a client matter.

Yes, it is called a "motion for order to show cause for contempt" and in the motion you ask the court to find the party in contempt of court and you explain their actions as to why it is contempt of court.
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Customer reply replied 4 years ago

At our motion hearing on Friday, he objected to the motion to show cause as being out of rule. The judge agreed, but gave me 3 weeks to resubmit it.


 


I asked why it was out of rule and she told me there is a process explained in the revised code. I can't find it, or perhaps I did but didn't know it. As near as I can tell, I had to subpoena him first and list some specific verbage in some kind of notice before filing the motion?


 


This really threw me, and I have no idea what the court needs. I don't get why I would do all of this before the court actually makes the order? It seems presumptuous on my part and putting the cart before the horse.

Thank you for your update.

The process for handling a show cause motion is you first have to make good faith effort with the other party to resolve their violation of the court order to compel. This is done by letter to the other party with the copy of the order to compel and tell them that they have failed to comply with the court order and you are giving them 14 days to comply with the order or you will be forced to file a motion for an order to show cause for contempt of court. Then in your motion for your order to show cause you have to state the date and how you made a good faith effort to get them to comply and they still failed to do so and hence they are in contempt of the order to compel production issued by the court.
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Customer reply replied 4 years ago

I see. I'm confused about a few details.


 


I've been trying to get this evidence for 18 months. Made 7 attempts to include an oral and written motion to compel, which he evaded by sending similar evidence that I actually didn't know about before that, which turned out to be half of what he was ordered to provide, which he misrepreewsented to both me and the court.


 


Why do I have to convince a judge to santion a lawyer that basically thumbed his nose at her order?


 


The judge allowed me to obtain copies while in session, then told me I had 3 weeks to do the order to compel properly.


 


So, acording to the process you've outlined, I can no longer make the motion because obviously there is nothing to discuss any more. This guy has been a weasel about everything he could get away with, and I want the court to sanction him over this, if not dismiss the case.


 


Sounds like the judge was helping the guy get off without sanctions. But the entire time we discussed me getting copies, she kept saying sanctions aside, that will be handled in your motion.


 


So what is going on here? What is she expecting from me at this point?

Thank you for your response.

You just have to detail in your motion as to how you tried in good faith to resolve the matter and that you have taken steps to do so and you have followed all of the notice requirements to the opposing party.

Here are the OH Revised Statutes on Contempt of Court.
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Customer reply replied 4 years ago

But how can I give him notice to provide evidence that I now have because of the judge?

If you have all of the documents you were requesting, then the contempt no longer is appropriate. I thought you said you still never received the documents and if that were the case then contempt would be appropriate.

If you have the documents now because of the judge, you would seek to file instead of a contempt motion a motion for sanctions to ask the court to award you the extra costs you incurred in the delays and fighting to get the documents from the court based on the opposing party's refusal to provide them under the court order.
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Customer reply replied 4 years ago

I hate to harp on this, but the Judge said I can still file the contempt motion and gave me 3 weeks to do so. So I'm wondering what I'm missing here.


 


At the hearing she gave me the option of handling it then, in wich case I would not be entitled to sanctions, or I could resubmit for santions. I told her that I wanted the santions. Then she said I had 3 weeks to submit. Then she asked what I needed, and had Plaintiff's counsel give me the discs so I could copy them while on the record.


 


Unless, there is a way to get the sanctions anyway, this seems a lot like the judge helping the other guy get out of the contempt sanctions because I didn't know what was going on at the time.


 


Is this your take on it as well?

Thank you for your response.

One thing I know you understand is I am going based off of only what you tell me. I cannot by nature and terms of this service review the court documents and evidence to verify what you tell me and cannot actually know why the court said what they told you without reviewing those documents. This is why our disclaimer states we can only really give general information and are not your attorney and do not represent you, even though myself and the other experts many times go beyond to try to help customers as much as possible.

Thus, I can only respond based on the information you provided and I cannot review the submissions and why the judge told you this and can only give you options as I am not able to review everything in the case as I said.

It sounds like she is telling you to properly refile your motion for contempt and you have the likelihood of getting the sanctions, but we are now at the point in this where in order to know for sure what you have missed with what you filed that you have to get that motion locally reviewed so they can see everything you have done and properly tell you what to write. It is just a limitation of this service and I do apologize for that.
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Customer reply replied 4 years ago

I totally understand. And I'm glad that you are not just giving me some short general answer because I may be some fruit that will blame you because my motion failed.


 


My feeling at the hearing was that she was looking forward to getting my motion correctly filed so she could come down on him hard. But after reading your description, I thought maybe I was just cocky and reading her wrong.


 


I'll read through the code and chew on it a bit, and run my thoughts past you before I refile.


 


And thanks for pointing me to the code.

Thank you for your understanding our limitations.

It sounds like she is wanting to award you sanctions and she just wants you to do it right so she can do it. You may want to consider too consulting with a local attorney at this point or the local law school for them to review what you have done to make sure you are doing it right. Even if you have to pay an attorney a few hundred dollars for assistance it might be worth it for the purpose of getting sanctions as attorney's fees are usually going to be awarded to you as well.
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