Slashdot Mirror

No, characters can be subject to copyright.

Try using google, if nothing else:

Protection of Fictional Characters
How can I tell if a character I have used is copyright protected?

And yes, aspects of them can be trademarked, too.

But even though they're not private information of yours I would not have the right to widely distribute them, either free or for money.

That's a good point, though I think if you posted it up in sections with commentary, and without financial motive, you might have a good argument for fair use. That kind of legal threat is clearly a intended to silence public discourse, not to protect some lawfirm's property. I'm not alone in that thinking, but who knows where such a thing would actually end up. While I could find references to the threat of a suit over publishing C&D letters, I didn't actually find the outcome of any such action. The threat itself is the chilling effect, though.

The penalties mentioned only apply if you're not actually the copyright holder. They do not apply if your DMCA claim is utter bullshit. In short, you can make false claims utter impunity.

They were very careful to write the law that way so that it would have minimal repercussions for copyright holders when abused, and maximum impact even when abused. For that reason it's about the most heinous and abusive law ever passed in the U.S. as far as favoring corporations over the people.

FYI: The DMCA a major focus www.chillingeffects.org.

The Chilling Effects Clearinghouse has a searchable database of DMCA notices, and other take down requests, but they rely on either the sender or receiver to report it to them.

The Chilling Effects Clearinghouse has a searchable database of DMCA notices, and other take down requests, but they rely on either the sender or receiver to report it to them.

The Chilling Effects Clearinghouse has a searchable database of DMCA notices, and other take down requests, but they rely on either the sender or receiver to report it to them.

The Chilling Effects Clearinghouse has a searchable database of DMCA notices, and other take down requests, but they rely on either the sender or receiver to report it to them.

Submitting a DMCA counter notice is a good first step, provided of course you'll willing to fight the good fight if they continue to protest.

Funny thing is, a lot of organizations actually back down upon receiving an intelligently written counter notice. Apparently, even attorneys hesitate to deal with folks who might actually make them look silly.

On every search page where they've removed results due to the DMCA, the following is placed (the only editing I have done is to the link that would link to the actual notice - it's different for each notice, but Chilling Effects doesn't always have the notice on file):

In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.

Linking there does not seem to be supportive of the DMCA. Chilling Effects is surprisingly neutral, given it's project by several law schools and the EFF, but it's far from blind supportiveness from what I can see.

(Disclaimer: I'm not a lawyer, nor am I American, so I may not know as much about this as someone else here.)

Google does not search the whole internet.

http://www.chillingeffects.org/notice.cgi?sID=1161

Etc.

It's important to know the actual text of the legislation:

http://www.legislation.govt.nz/act/public/2008/0027/latest/DLM1122643.html

92A Internet service provider must have policy for terminating accounts of repeat infringers
            (1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
            (2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

The bits that are interesting are:

1) The definition of ISP is anyone who provides access to anyone else - libraries, schools, businesses are all ISPs.
2) There is no definition of "repeat offender"
3) There is no definition of what is an acceptable policy.
4) There is no punishment for fraudulent complaints.

Add to that the TCF (large ISPs) draft policy:
http://tinyurl.com/tcf-draft-pdf

which is a 4 strikes and you're out policy, with no ability to have the evidence tested in court.

Now, initially the TCF policy stated that you could challenge the complaint and that would be the end of it - it was up to the copyright holder to pursue you further. However, the RIANZ then came back and said that they wanted to be the sole determiner of guilt.

This law starts from the assumption that if the RIANZ says you are guilty of violating copyright, then you _are_ guilty, and you get a warning. Collect 4, and your internet connection is removed. Since they have to remove the connection of repeat offenders, it could be reasonable to expect to not be able to get another one (ref: Google and "Wise Beard Man": http://www.chillingeffects.org/weather.cgi?WeatherID=605 ).

S92C, which covers hosts, is even stronger, you don't get any warnings. You have to pull the content, or you lose your connection instantly.

Mr Smith, when asked, considers the Prince vs Baby video (
http://www.youtube.com/watch?v=N1KfJHFWlhQ
) as well as linking to the video to be a violation of copyright, and worthy of a notice and violation letter.

Legally murky, as software with little or no purpose other than circumventing copy protection, software which is marketed for circumventing copy protection, or primarily designed to break protection would be a violation of US Code Section 1201, which would leave the service provider open for secondary infringement. So while the DMCA may not be the "right" way to ask, once the copyright holder has knowledge of a tool as described above, they could be legally liable if they don't remove it.

As far as the legal ramifications of (possibly) abusing the "safe harbor provision", I'm not sure.

Disclaimer: I am not a lawyer, this does not constitute legal advice, etc.

The Government have their 'block', ISPs are 'doing something' and we have our Internet. All of it.

If you depend on Google for your searches, you don't have access to the whole internet

I don't know what case you think you're talking about, but the Scientology case had nothing to do with YouTube.

I don't know about Google Sweden, but the US version will remove any entries that link to copyrighted material, on receipt of a proper DMCA notification, as required by US law. In their place, they'll put up a link to the request itself on chillingeffects.org, listing every URL that they weren't allowed to link to. As plain text, not as links, which I presume is legal. Here's an example of what Google will post when you ask them to take down links to your copyright material, plainly undermining the entire point of a takedown notice. Mocking? Quite possibly, although in a far more subtle way than TPB.

However, reading more closely, it looks like TPB haven't been charged with copyright infringement, or with linking to copyright material in any way. They've been charged with 'promoting other people's infringements'. Now I'm uncertain how to interpret that, since it'll be a translation from Swedish and probably loses some meaning, but to my mind, if one promotes an activity, one publicises and encourages it. It's more incitement to piracy than piracy itself. And I have no idea what the Swedish law is on that one. Maybe it's legal to link - but illegal to encourage people to click?

Does this message thread constitute an "access control circumvention device" under the DMCA? It's a reach to consider a message board thread to be a "device," but information herein does identify a statistical bias toward passwords used for access control. That wasn't the original intent of the DMCA ... but the original intent is irrelevant.

First off the PC wasn't an open design, it was closed but companies did a "whiteroom" re-engineering of the BIOS (something that the DMCA would outlaw today).

reengineering for inter-operability is allowed

IBM also published complete hardware designs. The closed components were the BIOS and the OS (which was Microsoft's, not IBM's).

The other example you give which is MP3 isn't really open

The format is open in that it is published, but it is patent encumbered. Once the patents expire anyone will be able to implement decoders and encoders, and there most of the patents will expire in the next two years.

Even if his hosting company is brain-dead, they should at least recognize that a signed affidavit that he is, indeed, the copyright holder will get them off the hook if any litigation comes their way. Failing that, he could file charges against them for copyright infringement under the DMCA, and sue for statutory damages. I believe the going rate is around $168,000 per song...

Send a official DMCA counter-notice.

[512(g)] If a subscriber provides a proper counter-notice claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individuals objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

The subscribers name, address, phone number and physical or electronic signature [512(g)(3)(A)]

Identification of the material and its location before removal [512(g)(3)(B)]

A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]

Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

here is a form that creates a counter notice for you, just fill in the blanks

http://www.chillingeffects.org/dmca/counter512.pdf

A valid DCMA notice will already have that information: http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=440Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512. Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.

My reaction to reading this article was: why doesn't wikipedia have a policy to publish all received notices (if not locally, then perhaps on Chilling Effects)?

Does slashdot have such a policy? If not, why not?

Does your website have such a policy?

Hopefully the owners of those videos are all aware of this:

http://www.chillingeffects.org/dmca/counter512.pdf

Generate a DMCA Counter Notification to bring the video back, assuming they should not have been taken down.

While I'd agree in general that having an attorney is a good idea in these cases, ChillingEffects offers a method for generating a counter-notice online.

My guess is that the vast majority of take-down requests are filed with no expectation that they'll ever generate a counter-notice. I doubt there's often a vast army of attorneys waiting to pounce on some teen-ager who posted an anime music video that uses part of a song owned by a JASRAC member. DMCA notices are cheap; litigation is not. Having to prove that the infringing work doesn't have at least a plausible fair-use defense might be prohibitively expensive. Obviously if the rightsholders choose to sue, you'll need an attorney. In most cases I'd say pulling the offending item makes more sense than a counter-notice, though in this particular case having to do with Scientology, or where political speech is involved, you'll want to file a notice, and you'll probably want an attorney involved from the outset. But I'd bet these types of cases are a very small subset of the types of DMCA notices that Google receives for YouTube videos.

Not every rightsholder has embarked upon the RIAA's "sue-the-bastards" strategy. Viacom didn't bring suit against individual YouTube members; they're suing Google.

Bypassing digital rights management is prohibited _except_ as provided for fair use (and a select few other uses).

If only that were true. Although the text of the DMCA mentions fair use, it doesn't really offer any protection for people who violate "technological protection" of the media in order to exercise those rights. Just look at http://chillingeffects.org/ for examples. The only real protection for people who have legitimate needs to get around DRM come in the form of exemptions which are reexamined and granted every 3 years. Here is the latest set of DMCA exemptions. The EFF specifically notes that no provisions have been made for the sort of fair use rights relevant to this discussion:

...all the proposed exemptions that would benefit consumers were denied (space-shifting, region coding, backing up DVDs).

On what grounds would it be pulled off of YouTube?

Grounds? Youtube takes down anything whenever *anyone* sends something that vaguely (really) resembles a proper DMCA takedown notice.

And they'll put it back up too, if the person who's content was pulled submits anything resembling a proper counter-notice.

This cannot happen. Once something is published, nobody can claim a patent on it at a later date... Even for the authors to apply for a patent, the application has to predate the publication.

Except in the US, where you have up to 1 year to file after initial public disclosure. Of course, the problem is that you can't get a foreign patent (because while the initial filing date is recognized by them, the fact it was published potentially nullifies any foreign patent. However, there are probably tons of exceptions and rules and ways for people to get around it).

http://www.chillingeffects.org/patent/faq.cgi#QID355

(Is it typical geek fashion to tell someone to RTFM without providing TFM?)

Here's a summary of the miscreant trying to monopolize "stealth".

The take-down actions against AMVs have mostly been initiated by the Japanese music rights holders, not the anime studios. The original request to remove 30,000 AMVs from YouTube ih 2006 came from the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC).

YouTube/Google don't really have much say in the matter; they simply have to follow the take-down provisions of the Digital Millenium Copyright Act. If you wished to contest their decision, you could have filed a counter-notice. That requires the rights holder to file suit within fourteen days or else the ISP must restore the material.

Anybody creating material that might trigger a DMCA takedown notice should definitely read the FAQ at chillingeffects cited above before posting. You have rights, too.

Scientology has, IMO, pushed a little hard on the legal end.

Their recent attempt to have Gawker Media remove an edited interview of Tom Cruise failed. Gawker's direct response was to cite fair use. See the thread on Gawker.com from January 15th: "Tom Cruise Indoctrination Video." There are follow-ups on Chilling Effects for the Cease and Desist Letter. Gawker's response to it...etc. etc. Basically, you can still see the thing.

Then some people on 4chan seem to have started the whole Anonymous protests as a direct result of Scientology's attempts to silence Gawker. Those protests have waned recently, but were a definite sign that people do notice this stuff and take it seriously.

The definition of Fair Use is a legal one; yes, the pocketbook factor will always limit the direct legal rights you theoretically have, but if you can get a million people in masks out into the streets....

Except, theres no such crime as accessory to copyright infringement, or 'contributory infringement'. It doesn't exist, the RIAA/MPAA wants there to be one very badly, but such a thing doesn't exist

Time for you to read the DMCA. Contributory infringement is alive and well.

If you post material online, someone can send a DMCA notice and have it instantly taken down. They must though state that legally and in good faith they have strong reason to believe they are copyright owners.

No, not "strong reason to believe". By sending the takedown they are stating under penalty of perjury that they are the copyright holders. Read the letter, he says he personally downloaded the file(s) in question and verified that his copyright was being infringed. This is, however, impossible as he has since admitted nothing on that site actually did infringe his copyright. So he lied in the takedown notice.

As crappy as the DMCA may be, it is very clear that if you're sending a takedown you better be 110% sure you're in the right - because otherwise you are liable, no excuses. In this case it appears as if the resolution will be amicable, which is good, but the CodeCodec guy is lucky.

We have directly verified by downloading the file from the Site provided by Google Inc. that the file does include CoreCodec's copyrighted Software. ...
Respectfully,
[private], CEO CoreCodec, Inc.

If you click the DMCA complaint link on the Google project page it takes you to the specific takedown to which the submitter refers, not the main page.

You appear to have missed this sentence:

"If you wish, you may read the DMCA complaint that caused the removal at ChillingEffects.org."

If Google have received a notice then they have no option but to take down the site. Someone needs to file a counter notice, then Google will reinstate them.

If Google have received a notice then they have no option but to take down the site. Someone needs to file a counter notice, then Google will reinstate them.

Fix your damn site if you're worried about this particular attack.

not "Blocking" isn't one of the requirements to be an ISP according to DMCA.

http://www.chillingeffects.org/dmca512/faq.cgi

From the level of whining we hear here, you'd imagine that a counter-notice would be a difficult and costly proposition. Here's what's really required:

* The subscriber's name, address, phone number and physical or electronic signature
* Identification of the material and its location before removal
* A statement under penalty of perjury that the material was removed by mistake or misidentification
* Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.

Doesn't seem too onerous to me. Once you file the counter-notice the rightsholder has to file suit against you within 14 days in a Federal court. I'd bet many of these complaints would just fade away if the rightsholders were forced to file suit in response to counter-notices.

Instead we have people like the OP who decide the best route to contesting take-down notices is to complain in his blog and on Slashdot.

Now there are a couple of areas where the balance between the rightsholders and the alleged infringers might be improved. It appears that, for complainants, perjury only applies to the issue of whether the complainant is authorized to act on behalf of the rightsholder. For the counter-notice, perjury applies to the statement describing why the material does not infringe. If that's the correct interpretation, I'd like to see the perjury clause apply to the actual claim of supposed infringment as well as to the claimant's authorization. Forcing rightsholders to sign the claim of infringement under penalty of perjury might stave off nuisance take-down notices.

Also, while I understand the rightsholders wishes that the supposedly infringing material be removed as soon as possible, I do think it would have been better if the ISPs were required to notify the alleged infringer before the material is removed, not after.

From the level of whining we hear here, you'd imagine that a counter-notice would be a difficult and costly proposition. Here's what's really required:

* The subscriber's name, address, phone number and physical or electronic signature
* Identification of the material and its location before removal
* A statement under penalty of perjury that the material was removed by mistake or misidentification
* Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.

Doesn't seem too onerous to me. Once you file the counter-notice the rightsholder has to file suit against you within 14 days in a Federal court. I'd bet many of these complaints would just fade away if the rightsholders were forced to file suit in response to counter-notices.

Instead we have people like the OP who decide the best route to contesting take-down notices is to complain in his blog and on Slashdot.

Now there are a couple of areas where the balance between the rightsholders and the alleged infringers might be improved. It appears that, for complainants, perjury only applies to the issue of whether the complainant is authorized to act on behalf of the rightsholder. For the counter-notice, perjury applies to the statement describing why the material does not infringe. If that's the correct interpretation, I'd like to see the perjury clause apply to the actual claim of supposed infringment as well as to the claimant's authorization. Forcing rightsholders to sign the claim of infringement under penalty of perjury might stave off nuisance take-down notices.

Also, while I understand the rightsholders wishes that the supposedly infringing material be removed as soon as possible, I do think it would have been better if the ISPs were required to notify the alleged infringer before the material is removed, not after.

Hang on, isn't this (the first part at least) how the DMCA supposed to work? I thought hosts/ISPs had to honour the takedown request and then investigate if a counter claim or dispute was filed so that the host can claim safe harbour.

Thank goodness the UK doesn't have anything quite as bad as the DMCA (yet...)

The bit about terminating services is a bit more extreme, but seems to be some standard practice taken too far - "You've breached part of the ToS by posting breaking a law, so we'll terminate your account" but without the part where they check whether it was a copyright infringement or just another quick DMCA claim.

File a counter notice. You've got rights. Exercise them.

File a counter notice. You've got rights. Exercise them.

Can't you get disposable companies in America? In the UK you can buy a company for a hundred US dollars or so. If someone sues you and wins you can just just bankrupt it. The directors at the time can't serve as directors of another company, but that is not really an issue for most people. They have limited liability against lawsuits though, not more than their initial investment.

In the UK you could easily set up a Xenu, Ltd and make sure that it is the target of any lawsuits. I'm not sure but I think Private Eye magazine may have used this as a way to be able to minimize the damage from being sued for libel.

The other cool thing you can do is to make sure that information that Scientology doesn't want into the public domain is read into legal documents which are publically accessible. The AACS scored a spectacular own goal by including a URL that contained the 09 F9 key in a DMCA takedown notice that was supposed to stop people spreading that key

http://www.chillingeffects.org/anticircumvention/notice.cgi?NoticeID=7180

If you got all this stuff absolutely right, they'd know that sueing you would be counterproductive and not do it, just like the AACS eventually stopped going after people who spread the 09 F9 key.

He reversed engineered the program, that would probably be banned under the DMCA. http://www.chillingeffects.org/reverse/

I'm getting tired of saying this, but you're trash-talking someone who is well-respected and well-qualified, based on what someone else thinks he said! Look at Zittrain's biog - he's a principal investigator for the Open Net Initiative and closely involved with Chilling Effects. Do you really think that he's arguing against internet accessibility and freedom? Or is it more likely that the article's author has misinterpreted him?

s/his big words and big ideas/the article author's big words and big ideas/
There, fixed that for ya.

This isn't some grumpy obsessive compulsive guy with a stick up his ass. This is someone who's involved in the Open Net Initiative and Chilling Effects, amongst others. Why not take a look at what he, himself, personally has to say?

In response to a legal request submitted to Google, we have removed 1 result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org.

Google has received notice of a list of web sites from the Internet Watch Foundation (web site URL) that contain child pornography. Google has removed the related web sites from its search results.

The authors of the white paper paint a dreary future where "copyright trolls" file lawsuits in order to rake in massive amounts of statutory damages

Hmm, well the DMCA safe harbor provisions are very similar to laws protecting common carrier as is the definition of a service provider similar to the definition of a common carrier:

Question: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?

Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] link

I would say that appear very similar to the definition of a common carrier and that filtering content precludes protection under the statute =)