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Taking the photo and reproducing it is copyright infringement. The other things you described are called derivative works. Corporations that make a big deal about intellectual property rights should be held to their own standards. It's not so much that the blog owner has been violated, it's the principle of the double standard that justifies the exposure.

The Computer Decency Act has a similar provision related to other issues (i.e. transfer of child porn mentioned by another poster, libel, fraud, etc).

Sure. And you're still going to be down for 14 days.

http://www.chillingeffects.org/question.cgi?QuestionID=132

Fourteen days after filing the counter-notice, if the person who filed the takedown notice hasn't filed an actual lawsuit, then the service provider must restore the content.

It's a little worse than that, though. As you may read in the above link, a counter-notice includes identifying information. I could file a DMCA takedown notice claiming copyright infringement in your post. Slashdot would be required (by US law) to remove your post. If you filed a counter-notice, then I get your name and address[1]. If that's all I'm after, I don't even have to bother filing a suit--I've got what I was after.

Honestly, the more I think about it, the more I dislike all of this.

[1] This is necessary so that I could file a suit if that was what I wanted.

FYI: Chilling Effects

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 individual's 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)]

this chaps comment.

It would be nice to know precisely what went on. Obviously we don't have to be told, but if "MPAA don't fuck with my shit" is going to be splashed around the kernel/Debian/Ubuntu planets I think it's reasonable for people to be interested in the details.

Perhaps this story can get even wierder and the MPAA will post the DMCA notice on Chilling Effects

See here for a very nice review of US law regarding reverse engineering.

I wonder what "illegal reverse engineering" means under Nigerian law, seeing as how it is generally permitted in the US.

I think one likely reason that the RIAA/MPAA are avoiding Harvard is because of the Berkman Center for Internet & Society which is an outgrowth of the Harvard Law school. You may be familar with Berkman through the Chilling Effects Clearinghouse, OpenNet Initiative (mapping government repression of the Internet worldwide), and the Stop Badware projects.

Berkman is very forward-looking and proactive regarding emerging issues of Law and Technology. The various fellows have been vocal and supportive of copyright reform. With such an interested, knowledgeable band of law professors and law students, it would be a serious black-eye if the RIAA attempted to litigate on the Harvard campus. I have to believe that they would be handed a bruising defeat, that would establish precedent regarding their campaign of extorting* settlement monies from poor college students.

* I mean extortion in the common, non-technical sense. Don't sue me for libel please.

Some court cases have held that the use of information from a web site in controvention of posted terms of service is illegal. http://www.chillingeffects.org/linking/faq.cgi#QID460 One legal theory is that such illicit use constitutes "trespass to chattels".

The more companies and organizations use Microsoft's published interfaces, the less freedom they have to change them.

Only if they actually want them to use those interfaces. If they want to make people avoid the products that use these interfaces that aren't by Microsoft (and it's not like they've never deliberately broken applications) the opposite is true.

That issue only matters with trade secrets, not patents.

"It does not matter for liability purposes that a patented infringer was unaware of the patented technology when infringement occurred. However, willful or intentional infringement may carry a higher monetary penalty than innocent infringement." (Chilling Effects).

Gee, that's the exact opposite of every single definition of "defamation" available to check online.

This isn't legal advice, but while in a strict dictionary sense "defamation" might be anything said that hurts a reputation, truth is an affirmative defense. The articles linked above state that no action is called for and no damages occur when someone states a truth. The person whose reputation is tarnished by the truth earned that reputation. Speaking or printing the truth therefore does no damage to the rightful reputation. That seems to this non-attorney to mean you can call the speech or publication by any name you want, but you're not going to get money by suing someone for telling the truth.

Again, I am not a lawyer, but grade-school Social Studies teachers in the U.S. teach their students about John Peter Zenger and the case of New York v. Zenger. That case set forth truth as a defense for slander and libel in the common law of the North American colonies of England.

BTW, where are "defamiation" and "plaese" on any of the above sites? Do I need the latest edition of Black's? I can't find those definitions at all, oh careful and detail-oriented A. Coward. Without resolving those two issues, I'm having trouble following your carefully stated premise and well-reasoned arguments to your no doubt brilliant conclusion.

I would try to find a lawyer that would do a free consult and try to determine whether it would be reasonably affordable to invest in having a lawyer prepare the dmca takedown and other legal forms.

It would only be in choosing between sending it myself and taking no action that I would do the former. I should have said this instead of blindly defending the idea of "customizing" someone else's legal form and sending it along with only my name attached. However, it's a simple statement and the perjury charge only applies if I'm lying.

IANAL and your recommendation of consulting one would be a much better idea than my and others' of hacking up a notice we found on the 'net. I'm just saying it's not insane. But probably is a little silly.

If your feeling a little silly try this for "templates"
I'm saving my ideas (think of a large company with famous cartoon animals) for 4/1/08. Good fun.

Scientology is so bizarre that I can't tell if you're being facetious or not.

The DMCA has little-used put-back procedures for fighting false claims of copyright infringement. It's kind of like saying, "Put up or shut up" to the alleged infringee. They either have to sue you within two weeks, or the material has to be returned to the network.

See: http://www.chillingeffects.org/dmca512/faq.cgi#QID 132

(I'm not a lawyer yet. This isn't legal advice.)

There seem to be at least three works at issue here, and none of them suggest that Viacom accused kdawson of infringing a copyright held by kdawson.

Work #1: Star Wars. This is an original work (although its origins can be traced to several other works).

Work #2: The Star Wars-themed commercial produced by kdawson. This might be a derivative work of Star Wars, or it might be an original work. Since George Lucas is not involved here, who cares? Viacom cannot argue that because kdawson's work might infringe on the works of George Lucas that Viacom has the right to use kdawson's work.

Work #3: The Viacom produced VH-1 segment featuring the Star Wars-themed commercial and commentary on that commercial. Sure, kdawson could sue for Viacom's use of the Star Wars-themed commercial without permission. That does not mean that Viacom can't protect the copyright in the commentary it produced. Viacom did not produce Star Wars-themed commercials that were derived from the Star Wars-themed commercials kdawson produced. Viacom created a compilation of the Star Wars-themed commercials kdawson produced and original commentary.

For example, if Robert Ebert reviews a movie and takes a few quotes from it, his commentary is still his. The movie producers do not have the rights to use that commentary (except, most likely, minimal non-infringing quotes).

If kdawson is not happy with Viacom's efforts to keep its commentary off of YouTube, then kdawson can a) sue Viacom for infringement of kdawson's work to pressure Viacom to be a bit less tight-fisted with its copyrights or b) send a counter-notice to YouTube to put-back the Viacom clip, then prepare for a defense if Viacom decides to sue for infringement by posting the Viacom-produced commentary.

The court of Slashdot, while a fun place to vent, is unlikely to have much effect. An appeal to change public policy to prevent users from being accused of infringing their own copyrights only makes sense if that is what is happening. That does not seem to be the case here.

Perhaps the ISP does not want to be subjected to this kind of analysis: http://www.chillingeffects.org/protest/notice.cgi? NoticeID=500?
--
Convenient Solar Power: http://mdsolar.blogspot.com/2007/01/slashdot-users -selling-solar.html

http://www.chillingeffects.org/notice.cgi?sID=2763

I'm not sure this is even legal. Under the DMCA safe harbor provisions, network operators are supposed to take down material upon receiving notice from a copyright holder. If the customer disputes this, they can provide a counter-notice that the material does not infringe upon copyright. The ISP is then required by law to reinstate service, unless the copyright holder proceeds with a lawsuit.

I don't see any room in this law giving Stanford discretion to make service contingent on receipt of a fee. Of course, IANAL so YMMV.

I'm just wondering... but wouldn't that be slander/libel/defamation?

The elements that must be proved to establish defamation are: (1) A publication to one other than the person defamed; (2) of a false statement of fact; (3) which is understood as being of and concerning the plaintiff; and (4) which is understood in such a way as to tend to harm the reputation of plaintiff. Source Here

If Microsoft loses/gives up and this is their purpose, could THEY be sued?

The author should most definitely file a counter-notice against Blogger, and have the page restored.

Directions for such can be found on ChillingEffects

The girl is stupid. Stupid in the same way that every person we interview here gets a MySpace and Google search done on them, informally, just to see what kind of things the Intarwebs have to say about them. It's nothing official, but if we're borderline about bringing on someone, that search might tip our decision one way or the other. If we're "eh" on hiring someone, and find out they prefer to spend their nights playing games until 4 AM, then coming in late to their last 4 jobs, we're probably gonna go with "poor work ethic" and not hire them. In the same way, if she's, say, at NYU Law as an undergrad, when it comes time for internships, all those law firms are probably going to be very interested in the fact that she got caught with a fake ID when she was an undergrad.

As the author states in her writings, "actions have consequences" . In this case, for a young woman who is "going places", her actions are that those places she's going are going to know she, when she was underage, she was willing to break the law just to go out drinking.

I hope Rachel gets the post back online...and maybe even gets the chance to file suit for abuse of DMCA Takedown notices. We'll see what kind of places this girl goes when it's not just a post about her fake ID, but her disregard for the valid use of the law.

Blame the lawyers who are stupid enough to put the actual byte-sequence in the take down notice. They should know by now that Google publishes the takedown notices, so the lawyers have actually made the code more public.

Like http://www.chillingeffects.org/notice.cgi?sID=3218 : note the second URL in the takedown notice...

Ah, more people who don't read articles or do research.. Google was indeed sent a cease and desist letter and can be found here ( dated April 17, 2007 )

I've been observing the revolt at digg throughout the day. The editors can no longer keep up with the posts. The entire digg front page (and most of the "Upcoming stories") is flooded with posts about the HD-DVD key.

Someone tried to create a Wikipedia page documenting the revolt, but that too was taken down.

Since AACS was broken 6 weeks ago, the MPAA and AACS LA have been sending out a flurry of DMCA takedown notices. However, as this example shows, the takedown notices seem to be delivered via USPS Express Mail. As mentioned, the current explosion has more than 300,000 pages mentioning the key (I don't know how many link to the Doom9 page). IIRC, Express Mail costs about USD $8 [usps.com seems to be off-line at the moment]. Sending out 300,000 notices at $8 a pop would inject $2.4M into the coffers of the United States Postal Service. Perhaps they would even roll back the rate increase that went into effect today [yeah, right].

Of course, delivering that many notices by physical mail would be prohibitively expensive, not to mention an ecological nightmare. The $2.4M would probably be better of spent combating the real pirates, rather than bloggers and video consumers.

That's great.

This guy used it in his URL and got a DMCA takedown notice.

Oh the irony :)

More information about AACS's (Access Content System Licensing Administrator, LLC) take down notices can be found at: http://www.chillingeffects.org/index.cgi

and specifically: http://www.chillingeffects.org/anticircumvention/n otice.cgi?NoticeID=7180

They give an example of AACS's take down notices and pretty good legal analysis of its contents.

More information about AACS's (Access Content System Licensing Administrator, LLC) take down notices can be found at: http://www.chillingeffects.org/index.cgi

and specifically: http://www.chillingeffects.org/anticircumvention/n otice.cgi?NoticeID=7180

They give an example of AACS's take down notices and pretty good legal analysis of its contents.

Michael Crook sends bogus DMCA takedown notice to BoingBoing (and others). Chilling Effects DMCA FAQ

The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].

If you don't see the instance of fair use, then your not committing perjury. And the difference between infringement and fair use is ht intended goal.

The thing is, you don't have to prove it is infringing at this stage, you have to prove you believe it is. Then the infringer has to say, I have a fair use exception to their copyright claim. Look here for some more on it.

Being that it is a parody doesn't necessarily make anything automatically fall into fair use. It has to actually say something that might be protected speech.

The fact the guidelines have been on the books for two years doesn't mean the copyright holder needs to lie down for anyone wishing to make a fair use claim. It is up to the infringer to show they are excepted from the law as their defense. I know this seems contrary to the innocent until proven guilty sentiment we commonly have. It is because all the laws on copyright are there to protect the copyright holder. Maybe something could be done in the future to change this. I doubt congress would though.

As someone that has been working hard to develop some competency with VOIP serving, it seems that anyone trying to do anything with http://www.openser.org/ without voicemail or POTS services is royally screwed.

You can't touch it.

This one deserves a headline at http://www.chillingeffects.org/.

Anyone have any ideas as to how one can operate a VOIP server for free and still pay the bandwidth bill each month? I'm serious, I'm open to anything

While I'm a supporter (and member) of the EFF, I don't see the strategy in not filing a counter-notice. Under the DMCA, if a copyright holder files a DMCA takedown notice (Section 512), the service provider has to take down the content and notify the account holder. The account holder can file a counter-notice explaining why the content is not infringing, then 14 days after the counter-notice, the content can be put back if no lawsuit has been filed. (See http://www.chillingeffects.org/dmca512/faq.cgi)
S ince the method of restoring content is well established, why didn't MoveOn.org/EFF use it? Why was no counter-notice filed?

First you have to prove that the DMCA is being "misused", and wasn't intended for this purpose since day 1

Okay... Done.

the safe harbor provisions of the DCMA are pretty clear.

http://www.chillingeffects.org/dmca512/faq.cgi#QID 125

on second thought "clear~ish"

but at the end of the day youtube has been taking down infringing materials when advised of it presence on youtube.

Viacom seems to want to basically destroy the safe harbor provisions of the DCMA.

Not sure how that link got messed up. Here's a proper one: http://www.chillingeffects.org/question.cgi?Questi onID=132 (DMCA Counter-notice)

YouTube and Google are not supposed to demand proof. The DMCA is very specific: The party who believes their copyright has been infringed must send a signed statement stating that the copyright is theirs, under penalty of perjury. Once that has happened, the ISP must take down the content if they don't want to risk being held liable for having the content.

When the claim is obviously BS, YouTube and Google could tell Viacom to stuff it and they have nothing to worry about.

Failing to act in response to a DMCA takedown letter is not against the law. "They can always choose not to take advantage of the safe harbor," Seltzer said. However, only by complying with the letter and taking pages out of their index can Google escape a possible copyright infringement lawsuit.

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material.

I wonder if the complaint will ever show up in the Chilling Effects clearinghouse list?

Google censors results from Americans at the request of the American government. We don't talk about it because the vast majority of people in the country despise the distasteful type of search results they filter. But nevertheless, if you truly believe in free speech, it is hypocritical to suggest that limiting one type of speech is ok while limiting another is not.

See this, this, or for more general information, chillingeffects.org.

Yes, there are terms you can use on google that will produce an error message ("some results have been censored due to legal request; for more information see chillingeffects.org.") Get creative, and you'll see it.

I'm not blaming google; they must follow the law of the land. Nevertheless, there you have it.

Google censors results from Americans at the request of the American government. We don't talk about it because the vast majority of people in the country despise the distasteful type of search results they filter. But nevertheless, if you truly believe in free speech, it is hypocritical to suggest that limiting one type of speech is ok while limiting another is not.

See this, this, or for more general information, chillingeffects.org.

Yes, there are terms you can use on google that will produce an error message ("some results have been censored due to legal request; for more information see chillingeffects.org.") Get creative, and you'll see it.

I'm not blaming google; they must follow the law of the land. Nevertheless, there you have it.

Google censors results from Americans at the request of the American government. We don't talk about it because the vast majority of people in the country despise the distasteful type of search results they filter. But nevertheless, if you truly believe in free speech, it is hypocritical to suggest that limiting one type of speech is ok while limiting another is not.

See this, this, or for more general information, chillingeffects.org.

Yes, there are terms you can use on google that will produce an error message ("some results have been censored due to legal request; for more information see chillingeffects.org.") Get creative, and you'll see it.

I'm not blaming google; they must follow the law of the land. Nevertheless, there you have it.

To have the material restored, the person who posted it has to reveal their identity which for obvious reasons is unlikely to happen. This is exactly the kind of thing that ChillingEffects.org was created for.

http://www.chillingeffects.org/dmca512/faq.cgi#QID 132 Emphasis mine. It doesn't even require that you state a reason; you need only assert that your material doesn't infringe. The DMCA is really a mixed bag. This is one of the things they got pretty close to right.

Question: What are the counter-notice and put-back procedures?

Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [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 individual's 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 subscriber's 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)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material.[512(f)]

So you're arguing that the safe harbor provisions of the DMCA don't apply to Google? I expect that there is a case for that, given that not benefitting financially is one of the requirements (and if they're not benefitting financially, I'd like to see the due diligence reports that justified spending that amount of money to buy YouTube). On the other hand, it doesn't seem cut and dried to me as a non-US non-lawyer, given that the stated intent of those provisions was to protect service providers who aren't directly ripping stuff themselves from becoming liable because of the actions of their users.

From: http://www.chillingeffects.org/dmca512/faq.cgi#QID 127

"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." [my emphasis]

I think MySpace clearly qualifies as a "provider of online services." The definition of "ISP" in the law is much broader than entities providing Internet access services. For instance, the Napster decision specifically excluded Napster from the safe-harbor provisions of this law. Section 512(c) specifically mentions "the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider."

So, yes, with respect to the DMCA, I believe MySpace is an ISP.

I've posted below the DMCA's requirements. Note in particular that false statements constitute perjury under the DMCA. Realistically, they sent a list of infringing programs (names in English and romanized Japanese, dates of original broadcast, and rights holders), the URLs to any instances they found with language saying "And if you see anything else with that title, its probably ours too", and a signed/stamped* "Me, too!" letter from each participating rights holder. (*Traditionally in Japan contracts are executed with a personal seal or a seal representing the entity engaging in the contract. Signatures are also legally sufficient in the vast majority of cases, and when dealing with foreigners most people just sign stuff, but some folks and businesses stamp legal documents as a matter of course. Ironically the last time it happened at work it was an Italian who had read about it on the in-flight guide and was really hot to try -- we put in a rush order with a local carver when the person expressed his desire in the morning and had it ready for the "signing" ceremony after lunch.)
---------
(Taken from the DMCA Faq located here: http://www.chillingeffects.org/dmca512/faq.cgi#QID 130).

The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]

The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].

Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].

A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].

A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Don't the DMCA safe harbor provisions protect google in the event of copyright infringement ? Even if it's not a clear cut case; the part about financial benefit seems to leave them a little open; it does provide material for google with it's massively deep pockets to lawyer their way out of it.

In response to a legal request submitted to Google, we have removed 1260 result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org.

In response to a legal request submitted to Google, we have removed 1260 result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org.