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The content is subtitles in my case. Can I host it until I get a DMCA notice? Or can I not even host it?

Can copyright holders cause trouble without first filing a DMCA notice?

Most creators wouldn't care about subtitles, this is to handle odd cases where they do.

Edit: The subtitles are generated using AI/ML for movies that do not have any. This seems to be relevant https://en.wikipedia.org/wiki/Fansub#Legal_and_ethical_issues

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    I am not sure what you mean by "Can I". If the law in your jusdiction prevents you hosting the content then it is a crime. That in no way suggests that law enforcement will prosecute you. If the authorities will not prosecute you then I guess you are free to do whatever you want. If you are posting the subtitles without posting the original content then you should be free and clear. If you are posting the subtitles =over= the original content then I would expect courts in many juristidctions to side with the content owners. Look up "ich wäre ein befehl" and Constantin Films. – Badger Dec 28 '20 at 1:59
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    Can I shoplift candy bars from the store until somebody catches me? The answer is the same. Just because nobody notices it doesn't make it legal. – Darrel Hoffman Dec 28 '20 at 17:00
  • Are you creating the subtitles (or otherwise participating in, or enabling, the process of adding them)? Or are you only hosting content others post (as YouTube might)? – Joe Dec 28 '20 at 22:28
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    @RBarryYoung No, subtitles are basically the transscription of a whole movie. They are a whole, thick novel in themselves. If you read Shakespear, you read what the movie version would have as Subtitles. – Trish Dec 29 '20 at 12:51
  • Are you hosting only the transcription, or the actual movie with subtitles overlaid? (You're not saying the movie isn't copyrighted but only the subtitles are, presumably.) – smci Dec 29 '20 at 14:33
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You may at your peril.

The safe harbor provision in 17 USC 512 does not provide absolute immunity to service providers, that immunity is only available (c)(1)

if the service provider—(A)...(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent

Given your question, which reasonably assumes that the material is infringing, infringement is apparent. The DMCA provisions were written not to protect service providers, but to protect innocent service providers who are not aware of the infringing activities of their users. So it depends on what you know.

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    so you just nee plausible deniability and you're good. OP: if anyone links this question to whatever service you run in the future, any lawyers have a field day with you – Hobbamok Dec 29 '20 at 14:33
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    Just to be clear, this would apply only if the content was uploaded by third parties, not the operator of the site/host, and the said operator was not aware of those actions (which of course, would not be the case if they were stating "please upload your infringing content here"). – jcaron Dec 30 '20 at 13:40
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No. That only works if you host other users' content...

... and on a large enough scale that you can believably say you had no idea that content was on your site.

It does not help you if you were the one who uploaded the infringing content. No matter whose site it is.

Why is there a DMCA safe harbor in the first place?

Before DMCA, you had sites like Compuserve or AOL who closely curated the content on their sites. Yeah, they had discussion forums and file boards, but they also had staff or volunteer/staff moderators (much like SE does) who were actively reviewing all the content. If somebody started posting "Ender's Game" chapter by chapter, mods would tear it down and flag the member.

Why such heavy curation? They were worried about Orson Scott Card suing AOL if the novel got posted by users. Super unfair. Yet, the law (at the time) was stuck in the old mentality of "the owner of a printing press knows what's coming off it". This moderation wasn't free. Not in the sense of free beer or free speech.

  • AOL, Prodigy, Compuserve, the WELL were paid memberships, because human curators aren't free.
  • Free speech didn't exist, because the human curators also silenced speech the platform didn't like or that would offend paying members.
  • Human curation does not scale! So they limited the volume of content by limiting the topics of content or the services e.g. file posting.

The DMCA "Safe Harbor" was designed to solve all three. It said that if the site is in the business of dealing with User Generated Content, it could be protected from lawsuits without the need to human-curate all that content. Sites got freer (like beer), freer (like speech), and vastly bigger with no need to curate.

This made possible sites that were simply impossible up to this point. Like Livejournal... or the Youtube comment section... or Youtube proper, even. GitHub could publicly host code without getting caught in the middle of a lawsuit between two uploaders. This also meant smaller sites could get in the game at minimal risk, which allowed the creation of thousands of niche sites.

"I did not reasonably know that content was there".

The core of DMCA protection is still that. So let's try a few examples.

General site: Joan creates a site that hosts ASCII text files, and it has 400 users. One of them, Pam, figures out a way to override the ASCII and upload subtitles. Joan can reasonably argue "I did not know that was there". The DMCA Safe Harbor ends that argument and protects Joan. Pam is still liable for uploading the content.

Subtitle site: Kevin creates a site specifically to host subtitles for TV and movies. Pam uploads some subtitles. Kevin can argue "I wasn't aware of that particular subtitle upload". However, the victim can argue "Your site is specifically for subtitles. What did you think they were uploading? 99% of things that people want subtitles for are other people's copyrighted work, you're basically Pirate Bay for subtitles". That's a valid point and Kevin will have a challenge overcoming that argument. So Kevin is at risk, but Pam is still liable for uploading the content.

Ones Own Site: Pam creates a subtitle website and uploads subtitles. No one else is involved. The DMCA Safe Harbor protections do not apply to Pam as the site owner because Pam is directly involved in the disputed content, and cannot claim to be unaware of it. Pam is still liable for uploading the content.

A fake public site: Pam sets up a supposedly public site like the first example. Then, Pam sets up sockpuppet accounts and uploads subtitles pretending to be other users. But there aren't a lot of other users, mostly it's just Pam. The copyright holder will probably probe for that: subpoena information to test whether the site is a bona-fide ISP. Pam's choices are now to fess up, or lie in court documents. Neither one is a good option - if caught it could mean jail.

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    You're also missing the case of a site that accepts subtitle submissions for non-subtitled work (or work that hasn't been subtitled in that language). There was a fansub site years ago that got DCMA'd (sued?) for having fan-translated English subtitles of anime. (I seem to remember there was then a twist in that the company then issued Region 1 DVDs with english subtitles ... that were stolen fansubs). This is fundamentally different than a site with subtitles that had been extracted from DVDs, as not all countries have made laws / rulings on fansubs. – Joe Dec 29 '20 at 20:19
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    @Joe Are you sure fan-created subtitles aren't a derivative work? I'm sure there's no question in your mind that the original script is copyrighted... Keep in mind a lot of fan stuff does violate copyright, but is tolerated by studios because it's good for the franchise. – Harper - Reinstate Monica Dec 29 '20 at 20:39
  • @Joe unless you make up subtitle that bear no link whatsoever with the original (which could be fun), subtitles are a translation of the original work, and are thus derivative work, which are both covered by copyright on the translation AND on the original. They may be tolerated (until they aren't), but they're definitely not allowed just because they're a translation or a transcription. – jcaron Dec 30 '20 at 13:46
  • @Harper-ReinstateMonica : I missed that this was specifically tagged US (as not all countries had the same laws about this). Even though it's a derivative work, there are still times when it might be considered fair use ... such as adding closed captioning for hearing impaired students, or adding descriptive audio for visually impaired students. – Joe Dec 30 '20 at 17:57
  • @jcaron : If we consider that closed captions are just time-tagged text that plays along with the video, you could use it for stuff other than subtitles ... like commentary or facts like the old "Pop Up Video". Maybe even snarky comments like MST3K / Rifftrax. Or alternate dialogue like when they used to do in the British version of Whose Line Is It Anyway? (I think one of the Monty Python DVDs did this, but they might've just put the closed captioning from some other movie as one of the options) – Joe Dec 30 '20 at 18:04
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ONLY if you are the host

As long as you are just the host, you can use the DMCA as your defense - if you follow all rules under the DMCA. Then you technically don't have to know what your users do, but you have to remove them from your webspace. Example hosts are Youtube or Thingiverse, which just offer space for your videos/3D models. And when they get a DMCA notice, they remove said content.

Hosts are not users!

To be a host, you may not be the one that uploaded the content. It has to be a user that is not affiliated with you in any way. If you uploaded the content, you are not a host, and you can not protect yourself using DMCA - and you are infringing copyright. See for example the Romuniverse case.

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In Brazil, piracy happens only when the "author" (intellectual proprietor) complains to authorities or file the DMCA notice. If they don't bother to do either, then you're safe.

And subtitle is explicitly not protected by the authors rights law, so yeah you're safe to create and distribute subtitles freely.

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    This sounds doubtful. Including a reference to a DMCA notice for Brazil makes it even more doubtful. And Brazil being a signatory to the Berne Convention makes this yet more unlikely. Do you have any sources? – jcaron Dec 30 '20 at 13:49
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    You should probably read the law on copyright in Brazil, especially article 29, which clearly forbids translation of protected works (dialogues) without authorisation from the copyright holders, and section VII which lists the sanctions for copyright infringement. And "you're safe until the author complains" does not mean "you're safe"... – jcaron Dec 30 '20 at 14:02

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