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

Question: Is reverse engineering legal?

Answer: Reverse engineering has long been held a legitimate form of discovery in both legislation and court opinions. The Supreme Court has confronted the issue of reverse engineering in mechanical technologies several times, upholding it under the principles that it is an important method of the dissemination of ideas and that it encourages innovation in the marketplace. The Supreme Court addressed the first principle in Kewanee Oil v. Bicron, a case involving trade secret protection over synthetic crystals manufacturing by defining reverse engineering as "a fair and honest means of starting with the known product and working backwards to divine the process which aided in its development or manufacture." [416 U.S. 470, 476 (1974)] The principle that reverse engineering encourages innovation was articulated in Bonito Boats. v. Thunder Craft, a case involving laws forbidding the reverse engineering of the molding process of boat hulls, when the Supreme Court said that "the competitive reality of reverse engineering may act as a spur to the inventor, creating an incentive to develop inventions that meet the rigorous requirements of patentability." [489 U.S. 141 160 (1989)]

Congress has also passed legislation in a number of different technological areas specifically permitting reverse engineering. The Semiconductor Chip Protection Act (SCPA) explicitly includes a reverse engineering privilege allowing semiconductor chip designers to study the layout of circuits and incorporate that knowledge into the design of new chips. The Competition of Contracting Act of 1984 allows the defense industry to inspect and analyze the spare parts it purchases in order to facilitate competition in government contracts.

The law regarding reverse engineering in the computer software and hardware context is less clear, but has been described by many courts as an important part of software development. The reverse engineering of software faces considerable legal challenges due to the enforcement of anti reverse engineering licensing provisions and the prohibition on the circumvention of technologies embedded within protection measures. By enforcing these legal mechanisms, courts are not required to examine the reverse engineering restrictions under federal intellectual property law. In circumstances involving anti reverse engineering licensing provisions, courts must first determine whether the enforcement of these provisions within contracts are preempted by federal intellectual property law considerations. Under DMCA claims involving the circumvention of technological protection systems, courts analyze whether or not the reverse engineering in question qualifies under any of the exemptions contained within the law.

Ignorance of one's rights has always had a dampening effect on the exercise of one's rights. That's hardly the law's fault.

This guy registered a domain and set up a web site. I'd hope he has enough intelligence to do a Google search on "dmca notice my rights". The third link is http://www.chillingeffects.org/notice.cgi?NoticeID =232 . The bottom has a FAQ list, the last quesion of which is, "What are the counter-notice and put-back procedures?"

You say that I should read it first? This I have done. (Most recently, last weekend.)

You say that I should discuss it first? This I have done. (Most recently, last weekend.)

You say that I should discuss it with lawyers? This I have done. (The company lawyer at my last job, for instance.)

You say that I should discuss it with lawyers who specialize in IP law? This I have done. (With Wendy Seltzer among others.)

You say that I should discuss it with lawyers who care about both IP and free software? This I have done. (Wendy Seltzer works for the EFF, and created Chilling Effects.)

You say that I should discuss it with Eben Moglen, the lawyer who wrote it? This I have done. (He corrected me on a misunderstanding that I had about whether it was a contract as well as a copyright license. It is not a contract, it is a copyright license.)

At every level I have had it confirmed that it is a copyright license.

I don't know how many of these things you have done. But whichever is the first thing that I have done that you have not, I suggest that you do that now and verify that the GPL really is a copyright license.

Then stop spreading misinformation.

"
Why should software authors have to worry less about patents than independent mechanical designers, chemists, or electrical engineers?"

Because the patent system in the case of software often imposes the largest costs in the whole process, amounting frequently to an absolute barrier to innovation. Patents are obviously not meant to do this and where the capital and marginal costs of bringing innovations to market are significantly greater than the burden of the patent system itself, the extra burden may be acceptable. Your "why shouldn't everyone else suffer" argument is perverse, especially since in reality the extension of patents to software has imposed even greater a burden on the mechanical designers, chemists and electrical engineers you mention.

"What's the difference between your hypothetical and a guy who designs a new engine on paper, proposes a new synthesis on paper, or sketches a new circuit on paper, and posts it on the web, whereupon some third party company picks it up and mass produces it, and the guy is threatened for inducing patent infringement (yes, there is such a thing)?

There is not much difference. I have heard the arguments that say software is special for various reasons, but you have to have already drunk the koolaid to buy them."

You are not the first patent lawyer to pretend that inventions in the abstract, mathematical world of software are no different than inventions in the realm of physical devices and processes and it is tiresome that many of your colleagues continue to utterly disregard the arguments and opinions of experts and pioneers and the consensus of the majority of practitioners in the field itself. If you are unaware of the explanations of what is different about software, written by notable practitioners and pioneers such as Donald Knuth, Phil Salin and Richard Stallman, then you are guilty merely of ignorance. If you are aware of those arguments and still maintain that "you have to have drunk the koolaid to buy them", then I think the onus is on you to explain in detail why these luminaries in the field have got it all wrong and you are right.

"Just FYI, in the U.S., there is a special "personal use" escape clause for "business methods" (which would be most algorithm/data structure type things)."

I don't understand how this is useful or relevant, nor how compression, encryption, routing, memory management, transform, signal processing etc. algorithms and the plethora of data structures ranging from image formats to crystallographic data structures can be regarded as "business methods".

"I'm sorry. I can accept that patents in general may harm the penniless dreamer. But software is not special, and there is no credible reason to exclude it. The (unproven) net benefit is the same as it is with all other technologies(a disclosure for exclusivity bargain)."

You would have us believe that patents only harm the idle and the penniless, but that is arrant nonsense and software patents in particular have a great propensity to gratuitously harm the least idle and to make penniless (or very much less wealthy) those who would not otherwise expect to have anything to do with the process of software technology innovation and ought to be able to go about their businesses unmolested by the parasites you and your colleagues help to arm.

"Freedom of expression - a red herring. Free speech is a very good reason to restrict copyright, especially for artistic works. However, software was treated as "expression" as a convenient legal fiction to shoehorn it into the existing copyright laws. But really, that makes no sense. You can't argue simultaneously that an algorithm is both a discovered law of nature and unique personal expression."

No-one is - an algorithm is a mathematical entity and mathematics should absolutely not be cursed with the misery of t

Qaint. Pretend I don't have any rights so there's nothing to take away. It would be funny if it weren't both pathetic and threatening at the same time. (pathetic because it is so naive, threatening because day by day it becomes more of a reality...)

To turn it back on you (forwards to the rest of the world). Copyright's are exclusive rights of the copyright holder including the right to:

1) To reproduce the work in copies or phonorecords;

2) To prepare derivative works based upon the work;

3) To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4) To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

5) To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

6) In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

So, anything not in this list I'm allowed to do no questions asked. In fact, the only way a copyright holder could (possibly) get me to give up further rights would be to get me to agree the work is being rented, leased etc. rather than being sold. (...A dirty trick if pulled off successfully...)

Consumer rights under copyright:

1) First Sale, the right to resell something once you're done using it.

2) Fair use, the right to freely use portions of a work for criticism, parody and the like.

3) Archival, the right to make backup copies of purchased works.

4) Reverse Engineering, the right to take apart and understand a purchased work.

Perhaps you can see why I think pretending these rights don't exist is coercive at best...

Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].

[back to notice text]

Question: What is copyright infringement? Are there any defenses?

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:

1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of copying, and
4. the market effect.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.

[back to notice text]

Question: What are the DMCA Safe Harbor Provisions?

Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies

See here for more.

As I reported on isoHunt.com and from the sources, Lokitorrent has been shutdown by US court order. The scandal surrounding its owner "taking the community's donations and ran" aside, this sets a bad precedent as Loki should qualify for OSP Safe Harbor under the DMCA. I don't know what exactly was the settlement between Loki and the MPAA, but my question for you is: how many hoops of links (.torrent should be considered a link) you have to jump through the internet, before it's not considered contributory infringement? With the historic example of the Universal vs. Betamax case and the resulting profitable home video business, what are possible business models the MPAA/RIAA can use to harness P2P as the next generation distribution channel? As I run the largest BitTorrent search engine around and was hit by MPAA's letters, this is of some personal concern to me.

Take the case of a small station or cable company retransmitting or "time-shifting" a show (that has already aired a gazillion times before) e.g. in one isolated breach of 17 U.S.C. 111, 501 et seq. - the law itself suggests that the award of damages (if anyone bothered to go to court over the issue at all) would be fairly minimal, and criminal prosecution highly unlikely, given the fact that an umpteenth re-broadcast watched by a few hundred viewers is of almost negligible impact on the rightholder.
On the other hand, demanding entirely overblown surveillance, censorship, damages and punishment, just for going after alleged one-time infringers sometimes not far from the borderline of fair use (excerpts on fan pages being taken down "at lawyerpoint" etc.), and even if the "suspects" happen to be minors, or 83 years old (let alone...deceased!), seems to appear perfectly adequate to many people if one sticks a label like "pirates" on such "bad" guys to mislead observers into believing someone else had actually been disposessed of an irreplacable piece of physical property merely by copying (part of) it.
IIRC there used to be something they called the First Amendment...

And there is where Google will get shivved.

I used to manage the Discovery Channel Canada's web site at a time when we were transforming the site from an online science news magazine to a video-on-demand supplier of Discovery Channel Canada material. One of the things a few of us were interested in doing was offering up transcripts of aired programs. Doing it was simple, even then, since most TV tuner cards were capable of grabbing the captioning info from a vertical interval and dumping it to a text file. The main problem, I thought, was that the material was always ALL CAPS and chock-a-block with seplling mistaks (in my own opinion, I thought that after the show had aired, the captions were actually useless for anything more than internal archival purposes). The real problem, though, was that often (really often), we didn't actually own the copyright.

Commonly, an outside company produces a show for a broadcaster. Once the show has aired, they are free to sell it to other broadcasters in other regions. So they are particularly feverish about protecting their material from the Internet. I mean, why would a broadcaster in Germany want to buy a television program translated into German if its English transcripts were available on the Internet? Well, I thought that was a garbage argument, but the lawyers didn't. In fact, the supply contracts with outside show producers were so fanatically exact, that using the captions for anyone other than the hard of hearing was simple out of the question.

So if the broadcaster can't use that material, what makes Google think they can?

Besides, do you think for one moment that Fox will let anyone use stills and complete transcripts of The Simpsons? Not in a million years, man.

I see busy days ahead for http://chillingeffects.org/.

It's not quite open source and they are selling it and are happy to use the DMCA to stop anyone from distributing it, I'm too tired to explain, just RTFA here.

The Censorware Project was originally an informal collective of six people who collaborated online to fight censorware: Seth Finkelstein [sethf.com], Bennett Haselton [peacefire.org], Jamie McCarthy [mccarthy.vg], Mike Sims, Jim Tyre and myself. Several of us had never met or even spoken on the phone, yet for some time -- around two years as I recall -- we had a remarkably easy collaboration. There was no funding, no hierarchy, no titles, not even project managers. Someone would suggest a project and take the responsibility for a part of it, others would sign up for other elements, and proceeding this way we got a remarkable amount of work done, including reports on X-Stop, Cyberpatrol, Bess and other censorware products.

Even though two of us were attorneys -- Jim and myself -- we never incorporated the group or wrote a charter or any contracts among ourselves. Mike Sims was obliging enough to register the domain, just as other members paid for press releases and the other incidental expenses which came along. Mike also served as webmaster of the censorware.org site and did substantial work [sethf.com] for the group, including writing contributions to several of the reports and lead authorship of at least one. Seth was the source [sethf.com] of our decrypted censorware blacklists [sethf.com] and managed many technical tasks, but later felt he had to leave the group because of the increasing prospects of a lawsuit [chillingeffects.org], particularly under the Digital Millennium Copyright Act (DMCA). After Seth left the group, the remaining five continued.

Robert Frost said that "nothing gold can stay," and the Censorware Project was no exception. Over the summer of 2000, Mike Sims' reaction to a perceived slight from Jim Tyre was to take the site down for a week. He sent us mail at the time saying something like "The Censorware Project is now closed." [sethf.com] I replied to him that, given that the group was a collective and we all had an interest in its work product, the domain, and the goodwill it had achieved, the decision was not his to make. Sims did not reply.

After Seth created a partial, text, mirror, Mike put the site back up a week later without explaining, let alone apologizing for, his actions. Given his continuing failure to answer any email from me (and I think from others) and the overall signs that Sims thought the group was exclusively his, I wrote him several emails requesting that he turn the domain over to Jamie or Bennett, as I felt we could no longer trust him to administer it. We also found out during that time that important email from people trying to contact us, including members of the press, was not being answered by Sims, nor being forwarded to other members.

I ultimately became exasperated that my name was listed as a principal on what had now become a "rogue" site I had no control over. Over about a five week period, I wrote Sims several more emails asking him to delete my name from the site if he wasn't going to transfer the domain. Again, I received no reply.

In November 2000, Sims took the Censorware Project site offline again, with a message saying "Due to demands from some of the people who cont

The perjury clause is very deceptive. In fact it is completely worthless. If you are ever confused about any portion of the DMCA the first thing you need to remember is that it was literally written by lawyers employed by the publishing industry. As such, they had two primary goals in mind when drafting it:

Primary Goal) Any copyright holder making use of the DMCA shall be immune to any and all prosecution or liability, no matter how stupid, reckless, or abusive their behaviour.
Secondary Goal) Nail anyone and everyone as easily rapidly and effectively as possible, guiltly or not.

So what about that "penalty of purjury" thing? Sounds nasty, right? Sounds like a good and balanced law, right? To protect you from frivolous and abusive attack, right?

NOPE! It's freaking WORTHLESS! Any DMCA takedown notice filed by a lawyer with an IQ above 2 is going to be immune. Why? Let me make up a simplified sample DMCA takedown notice:

I am the copyright holder of X
Person Y is distributing Z
I think Y distributing Z is infringing my copyright X

Now, what's covered by the "penalty of perjury" clause? Well, just remember the primary goal: copyright holder immunity no matter how stupid, reckless, or abusive they are. Well if they are stupid, reckless, or abusive, the claim of copyright infringment might be false. So that's not covered. And if they are stupid, reckless, or abusive, person Y might not actually be distributing file Z. So that's right out too.

What does that leave? I leaves the claim "I am the copyright holder of X". And even an abusive reckless IDIOT can fill in something that they are actually the copyright holder of.

And just in case it wasn't 100% crystal clear, there is absolutely no requirement that the target of the takedown notice - file Z - actually have any connection at all to the claimed copyright X. In fact file Z can be - and at times HAS BEEN - a public domain file. For example Universal Motion Pictures stated they had the copyright on the movie U-571 and issued a takedown notice on the PUBLIC DOMAIN file 19571.mpg because it contailed the digits 5 7 and 1 on a video filetype. Yes, they were indeed the copyright holder of the movie U-571. Everything else was a load of crap. Therefore Universal Motion Pictures is immune to any and all liability.

See how easy it is to read and understand the law once you know who literally wrote it?

-

Fix the DMCA, but stop giving them excuses to have laws like it passed.

Appeasement doesn't work with big corporations; it only shows them that their methods work. They already got copyright duration extended for fifty years, did that stop their lobbying efforts to get it extended again?

If you can use DMCA so force *GOOGLE* to remove a link to a *GPL* Firmware, it has to be seriously broken...

http://www.chillingeffects.org/dmca512/notice.cgi? NoticeID=1471

How would you feel if your webmaster maliciously took your web-site offline, then, when you demanded its return, put up a site attacking your company at your old URL? It happened to a group I was involved in, the Censorware Project, currently at http://www.censorware.net. The purpose of this essay is to put the behavior on record, and to give you some impressions and inferences about it.

The Censorware Project was originally an informal collective of six people who collaborated online to fight censorware: Seth Finkelstein, Bennett Haselton, Jamie McCarthy, Mike Sims, Jim Tyre and myself. Several of us had never met or even spoken on the phone, yet for some time -- around two years as I recall -- we had a remarkably easy collaboration. There was no funding, no hierarchy, no titles, not even project managers. Someone would suggest a project and take the responsibility for a part of it, others would sign up for other elements, and proceeding this way we got a remarkable amount of work done, including reports on X-Stop, Cyberpatrol, Bess and other censorware products.

Even though two of us were attorneys -- Jim and myself -- we never incorporated the group or wrote a charter or any contracts among ourselves. Mike Sims was obliging enough to register the domain, just as other members paid for press releases and the other incidental expenses which came along. Mike also served as webmaster of the censorware.org site and did substantial work for the group, including writing contributions to several of the reports and lead authorship of at least one. Seth was the source of our decrypted censorware blacklists and managed many technical tasks, but later felt he had to leave the group because of the increasing prospects of a lawsuit, particularly under the Digital Millennium Copyright Act (DMCA). After Seth left the group, the remaining five continued.

Robert Frost said that "nothing gold can stay," and the Censorware Project was no exception. Over the summer of 2000, Mike Sims' reaction to a perceived slight from Jim Tyre was to take the site down for a week. He sent us mail at the time saying something like "The Censorware Project is now closed." I replied to him that, given that the group was a collective and we all had an interest in its work product, the domain, and the goodwill it had achieved, the decision was not his to make. Sims did not reply.

After Seth created a partial, text, mirror, Mike put the site back up a week later without explaining, let alone apologizing for, his actions. Given his continuing failure to answer any email from me (and I think from others) and the overall signs that Sims thought the group was exclusively his, I wrote him several emails requesting that he turn the domain over to Jamie or Bennett, as I felt we could no longer trust him to administer it. We also found out during that time that important email from people trying to contact us, including members of the press, was not being answered by Sims, nor being forwarded to other members.

I ultimately became exasperated that my name was listed as a principal on what had now become a "rogue" site I had no control over. Over about

How would you feel if your webmaster maliciously took your web-site offline, then, when you demanded its return, put up a site attacking your company at your old URL? It happened to a group I was involved in, the Censorware Project, currently at http://www.censorware.net. The purpose of this essay is to put the behavior on record, and to give you some impressions and inferences about it.

The Censorware Project was originally an informal collective of six people who collaborated online to fight censorware: Seth Finkelstein, Bennett Haselton, Jamie McCarthy, Mike Sims, Jim Tyre and myself. Several of us had never met or even spoken on the phone, yet for some time -- around two years as I recall -- we had a remarkably easy collaboration. There was no funding, no hierarchy, no titles, not even project managers. Someone would suggest a project and take the responsibility for a part of it, others would sign up for other elements, and proceeding this way we got a remarkable amount of work done, including reports on X-Stop, Cyberpatrol, Bess and other censorware products.

Even though two of us were attorneys -- Jim and myself -- we never incorporated the group or wrote a charter or any contracts among ourselves. Mike Sims was obliging enough to register the domain, just as other members paid for press releases and the other incidental expenses which came along. Mike also served as webmaster of the censorware.org site and did substantial work for the group, including writing contributions to several of the reports and lead authorship of at least one. Seth was the source of our decrypted censorware blacklists and managed many technical tasks, but later felt he had to leave the group because of the increasing prospects of a lawsuit, particularly under the Digital Millennium Copyright Act (DMCA). After Seth left the group, the remaining five continued.

Robert Frost said that "nothing gold can stay," and the Censorware Project was no exception. Over the summer of 2000, Mike Sims' reaction to a perceived slight from Jim Tyre was to take the site down for a week. He sent us mail at the time saying something like "The Censorware Project is now closed." I replied to him that, given that the group was a collective and we all had an interest in its work product, the domain, and the goodwill it had achieved, the decision was not his to make. Sims did not reply.

After Seth created a partial, text, mirror, Mike put the site back up a week later without explaining, let alone apologizing for, his actions. Given his continuing failure to answer any email from me (and I think from others) and the overall signs that Sims thought the group was exclusively his, I wrote him several emails requesting that he turn the domain over to Jamie or Bennett, as I felt we could no longer trust him to administer it. We also found out during that time that important email from people trying to contact us, including members of the press, was not being answered by Sims, nor being forwarded to other members.

I ultimately became exasperated that my name was listed as a principal on what had now become a "rogue" site I had no control over. Over about a five week period, I wrote Sims several more emails asking him to delete my name from the site if he wasn't going to transfer the domain. Again, I received no reply.

In November 2000, Sims took the Censorware Project site offline again, with a message saying "Due to demands from some of the peo

You can't sue someone that you can't bring into court, and it's difficult to remain anonymous when you do get brought into court. This case is interesting to me purely for its procedural side.

Yes you can, and many people do file John Doe lawsuits. If the suit goes forward, then a subpoena can be issued to determine the identity of the John or Jane Doe named in the suit. Of course, this does provide a bit of a Catch-22. How do you fight a subpoena to reveal your identity if you don't know that it's your identity that's going to be revealed?

You know the problem with the Google analogy? The problem is that once you point it out enough times, the MPAA would send Google a DMCA notice, which Google would honor, just like it honors most DMCA notices.

Chilling Effects monitors these notices and removal of links from Google results.

So it would be rather simple to force Google to remove the links to trackers (since Google has never shown any intention of fighting DMCA in court, even before the IPO), and then you would lose the ability to argue about selective enforcement.

Yes. Google has been approached to remove links, due to DMCA, and very frequently actually. And it seems that they always agree. Just look at the notice in the bottom of this page. Here actually is a nice archive of a lot of DMCA notices sent to a number of sites.

The difference is, Google is a service provider that falls under the safe-harbor provision of the DMCA. To fall under the safe harbor provision, the site must register with the copyright office and identify how to contact their copyright agent. As you can see, Loki Torrent has not registered.

What you're referring to is called "Contributory Infringement". Basically through your actions you're allowing/facilitating copyright infringement to take place by someone else.

http://www.crblaw.com/GetFAQAnswer.asp?id=49 has a blurb about it.

http://www.chillingeffects.org/piracy/faq.cgi#QID2 89 goes into more detail too.

IANAL (I doubt a real lawyer would have the time, or the inclination, to read /.). But at a guess, the sites hosting .torrent files to copyrighted content could probably be nailed for contributory infringement. Sure, they don't have an actual hand in the infringement, but it seems quite obvious that they are enabling the infringment to take place.
Just going by the definition presented here
Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe.
To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity.
I would guess that hosting specific .torrent files would be ruled contributory infringement. e.g. If you host LotR:RotK-EE.torrent, and it is actually a valid tracker, you are knowingly assisting someone in the infringment of the copyright on the movie. And that specific file doesn't really have any non-infringement purposes.
Of course, this probably just means thet we will see torrent sites moving onto freenet, or just have wholseale distribution if torrent files on P2P networks. Whether you agree with mass copyright infringement, or not, its happening and its not going to go away any time soon. Such activity will probably ebb and flow as new techniques are invented to enable it, and new laws/lawsuits are invented to stop it. In the end, such activity will probably just become yet another accepted fact of life, with those affected doing what they can to minimize the damage.

The link is from a the page generated when you search for "kazaa lite." As is required, the complaint contains the url they had to exclude from the search results. Its easy enough to copy and paste the URL from the DMCA notice.

They've done similiar in the past when they had issues with Kazaa Lite. The search results link to the original DMCA Complaint (bottom of the page) which convienently lists the sites they wanted removed from the Google Listing.

Marx Brothers vs Warner Brothers

someone can request a takedown for copyright material of they don't own?

Perhaps they were thinking of industry trade associations which sometimes enforce copyrights of their members on their behalf.

In the case of the DMCA, the complaining party must state that they are authorized to take such action by the copyright owner. Of course, such a statement could be untrue.

They did. Perfect 10 Wants Alleged Infringers Removed From Google (#1)

It's not the algorithms. The scariest patents are business methods patents. People patent stupid obvious stuff like e-commerce(http://www.chillingeffects.org/ecom/) and then say you stole the idea from them.

It's rather interesting that (with the filter off) I can do for an example, a search for 'Donkey Sex' and come up with at least 5 EXACT matches. Why not censor THESE images? Certainly the donkey has endured some sort of humiliation. On a serious note however, what is the point of Google censoring these images? I can't see them directly gaining anything by doing so. If I do a search for Abu Ghraib, it's a high-possibility I know about the scandal, so I'm going to expect to see those images anyway. Certainly this image isn't any less disturbing. I wonder if the Military has the copyright on those photos (saracasm). Maybe we'll see 'Army ordres Abu Ghraib Photos taken off website' on Chilling Effects

An interesting case is booble.com - sent a takedown notice by google and now reopened as tauntedbytatas.com

Here is an actual cease-and-desist notice concerning a trademark infringement on a Rubik's Cube-type game. There is no mention of copyrights or patents. They claim that the "distinctive overall appearance" of the Rubik's Cube is trademarked. The same page says that product design can be trademarked. One would think that the visual appearance of the design would have to be distinctive and be important with respect to marketing and/or identifying the product (i.e. it is associated with the product and/or the manufacturer) in order to be trademarked. They also mention trade dress. This appears to apply to distinctive aspects of the total visual appearance of the product. These aspects would be associated with the product by the public. An example of trade dress is a color scheme that is associated with a specific brand.

On the Macintosh platform years ago, there was a game called Rubik's Wrap. In the game there was a repeating pattern on a 2D surface. The pattern was scrambled and would have to be unscrambled by the player, similar to a Rubik's Cube toy.

Take the tinfoil hat off.

Oh, please. If you'll read what I said, I'm saying it's not malice. And there's no need for a conspiracy. But I've seen both sides of this. I helped run a small site that got bogus lawyer threats, and I've worked for a company that used the threat of legal action to get people to to what they wanted, knowing that they couldn't win. Honest, it really happens.

First, it was a fuckup. That's clear, they admitted it, end of story. [...] I know it screws up the schemas of the slashdot crowd, but there's really not this global conspiracy to screw you personally.

I'm not saying they're mean, that the Trilateral Comission is behind this, or that they're working at the behest of the CIA. I'm saying they mainly are concerned with getting what they want. And because they're unusually insulated from the consequences of their actions, they are likely to be indifferent to their effects on ordinary people.

Second, "what they want" in this case is for pedophiles to stop using Nintendo to screw up kids.

What they want is to protect their trademarks and their reputation. There's no particular reason to think they're carefully focusing on pedophiles. The point of their cease-and-desist-bot was probably to stop search engine bait from using Nintendo trademarks; if they were serious about stopping a pedophile the last thing they'd do is send a "please don't use our trademarks" letter to the sicko.

And the reason they made a big public apology is that they got a fucking huge amount of bad press. This is just another side of protecting their public image. But you can bet that when their lawyer-bot bothers other innocent people, ones who get less press, free video game systems are not the general result.

Third, there's no case for indifference because they did everything they could to fix the fuckup.

They did? I missed the press release where they said they'd review their process to make sure that only people actually violating their trademarks for commercial gain would get legal threats. Could you point me to that?

Maybe you don't mind getting threats like that, but reasonable people feel that some people and corporations are using their resources to threaten people with ruinously expensive lawsuits just to get their way. Personally, I think it's an abuse of power, and I'd like to see it stop.

Now, if you never hear from them again after challenging them and feel you have a moral obligation to strike back (on behalf of future victims or something)...and after you've done your research and you're sure that the company isn't legit...then you should contact a lawyer and see what he or she suggests as a course of action.

I'd disagree a little with this. Most lawyers I've dealt with are good at helping you reduce the risk of a course of action, but aren't so good at suggesting them. Instead, come up with a few ways to strike back (I'm sure we'll help) and then have a lawyer help you evaluate the risks with each one.

Personally, if I really thought they were shaking down innocent startups, I'd make sure other people could Google them and find out your point of view, even if it's anonymized. Also consider talking to the folks who run Chilling Effects, and on-line clearinghouse of people using IP law to threaten you; they may be willing to publish material for you.

The actual notice is at Chilling Effects.org. From the notice:

The information contained in this notification is accurate as of the time of compilation and, under penalty of perjury, I certify that I am authorized to act on behalf of Diebold.

The DMCA only requires the person sending the notice to state that they represent who they say they represent, under penalty of perjury. The rest of the notice is made with a good-faith belief.

However, to counter a takedown notice, the recipient must respond by stating under penalty of perjury that they have permission to publish the allegedly infringing material.

I found another Diebold DMCA notice at chillingeffects.org. The "under penalty of perjury" part actually doesn't include an identification of Diebold as copyright holder. The exact text is: under penalty of perjury, I certify that I am authorized to act on behalf of Diebold. This is all that's required by at chillingeffects.org. The "under penalty of perjury" part actually doesn't include an identification of Diebold as copyright holder. The exact text is: under penalty of perjury, I certify that I am authorized to act on behalf of Diebold. I'm not sure that's sufficient to meet the standards of 17 USC 512 (c)(3)(vi), not being a lawyer, but I'm pretty sure that what's being represented under penalty of perjury in the MIT notice does not include a claim that Diebold owns any copyrights.

Perhaps I should share this info on gnutella and title it 'Fight the Power' ;-)

Actually the one nice thing about the safe harbor provision for ISPs is that the ISP has the ability to deligate a DMCA contact at their company, and the provision specifically states the notice -must- be delivered to this contact.

The way we handled this at the ISP I used to work at was, on the main webpage, as an image of course, was a message stating all DMCA and copyright notices must be sent to [address here] which was an address at our domain which forwarded directly to our lawyer and not us.
We also had to file this address somewhere, I believe the copyright office, but I am not sure on that detail as it was our legal department that handled it.

If a bot is doing whois lookups for an email and it is sent to one of the addresses we get at the NOC, the letter can be legally ignored.
If its not sent to the specific address, we have not been notified as per the safe harbor provision and thusly have a legal defense.

In our case, one would have to go to our website to look for contact addresses, and look either on the main page or the contact page to find the right address.
Any emails like that sent to us were ignored.

http://www.chillingeffects.org/dmca512/faq.cgi#QID 129

The above URL is the only quote I can find at the moment, but it states:

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

Seeing as we did get a large number of claims of copyright infringement sent to our staff and support addresses, and to my knowledge our legal team never mentioned any, it looks like both bots and stupid people don't look up the correct address at all.

While I agree that it is wrong for "others" to change a work, I can't say that I agree about the creator. Ignoring for the moment the difficulty of ownership of a creative work especially with something as collaborative as a movie...if Picasso had wanted to change one of his paintings, why shouldn't he have been able to whatever he damn well pleased? All the more so with books, music and movies where the artist can change their creating without taking away the original. If you don't like Lucas's changes you don't have to watch or even acknowledge them, stick with the originals. I'm not saying that it's a wise decision for Lucas, only that an artist should be able to do what they want with their creation. Of course personally I find the "derivative works" additions to the copyright clause to be harmful to art, creativity and society in general, so I partially see the right of an artist to change their work as a good thing because they're the only one's that can even if in a specific case, I may believe they've ruined it.

You're wrong though, which is what is distressing.

Explanation of civil subpoenas and a site about the DMCA

I'd suggest to read it, so you can get an idea of what people are scared of and upset about. They are not wiretapping, but they can monitor you, and then write their own letter to get your information to bring into a civil courtroom to force you to defend yourself.

Try reading the law before you spout off about it. See Section 1201, which provides: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

The anti-trafficking provisions are in addition to the anti-circumvention provisions. See also any published analysis before pontification.

Basicly You can only copyright 'Creative works'

From afan chillingeffects....

"Question: What about a fictional world and the events described in the world? Are they copyrightable? Can I use those in my story?

Answer: It seems unlikely that a FanFic work would include no previous characters but it is not impossible to imagine. Take Tolkien's "Middle-earth" world for example: this world has been taken without the main characters and has been used in role playing games (RPGs) and video games (see the TSR example below). For these cases, it is important to remember that copyright does not extend to ideas. Therefore, incidents, settings or other elements which are indispensable, or at least standard, in the treatment of a given topic are ideas and cannot be copyrighted. For example, the Court of Appeals for the Second Circuit has held that "elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx." These "scenes a faire" are therefore unprotected. Likewise, the Seventh Circuit has held that mazes, tunnels and scoring tables are unprotected under the scenes a faire doctrine in video games like Duke Nukem. "

Maybe you should post some links tomake you point next time.

Anything less would ring hollow, and just be yet another case of a corporation playing the 9-year-old on the playground, "Just kidding -- I take it back."

Openness cleans up problems -- secrecy nurtures them.

You say this, and then immediately thereafter you say:

Gee, how terrible ... you can get in touch with the guy who's got unauthorized copies of your stuff and ask him to take it down.

So, I should be forced to provide my personal contact information to the general public so that its open, but the threats that you send me, whether by lawyer or by crow bar, ought to be kept private?!

You have a choice, you can force everyones contact information to be public and allow disputes to be resolved in secret, or you can give people the option of keeping their contact information private and require some disputes to be resolved in a public forum. Why would you choose to prevent the secrecy of contact information over preventing the secrecy of volatile (and sometimes violent) disputes?

A future in which everyone speaking on the internet is required to make their personal contact information public is a future in which disputes are resolved through threats and intimidation. A future in which requests for contact information are handled out in the open is a future in which disputes are resolved with due process and justice.

Are you so frustrated by having to delete annoying emails that you are willing to do away with any reasonable balance in society? Are you under the impression that everyone who operates a website is a "potential spammer" and everyone who wishes to obtain the personal contact information of a website operator has good intentions? If so you are surely mistaken.

Try to think outside of your personal experience.

I call "Bogus" on PanIP even before the patent review is over because if you really felt your patent is good, you'll go after the big fish. Go after Amazon.com or Buy.com for $50,000,000 instead of tiny companies for $5,000. PanIP probably wasn't expecting the little guys to group together.

The EFF is adding to their history of being a group defense for technological innovation in free speech areas. For example, Chilling Effects helps anyone dealing with a C&D letter. Their DirectTV fight helped protect individuals who couldn't afford to do anything but settle, given DirectTV's threats, even when innocent.

The EFF is small enough (come on everyone, buy coffee instead of TripleTallLattes for 2 weeks and DONATE to the EFF) and doing so much already that they're not going to choose patents just because the patent-holder is suing. They're choosing patents where the EFF thinks prior art exists or the patent isn't novel and the patent is hurting free speech and the right to technological innovation.

Even if there isn't prior art per se, a patent can still be far too obvious yet be granted. On this topic, I like this essay on telling good patents from bad:

"But I have found a common thread in many of the bad patents which could be a litmus test for telling the bad from the good. Patent law, as we know, requires inventions to be novel and not obvious to one skilled in the art.

But the patent office has taken too liberal a definition of novel. They are granting patents when the problem is novel, and the filer is the first to try to solve it. As such their answer to the new question is novel. The better patents are ones that solve older problems.

Amazon was one of the earliest internet shopping operations. So of course they were among the first to look hard at the UI for that style of shopping, and thus were first to file an invention called one-click-buy. But one-click-buy was really just an obvious answer to a new problem. The same applies to XOR cursors, browser plug-ins, and streaming audio and video

...While it would not solve every problem, I think if patent examiners asked, "How long has somebody been trying to solve the problem this invention solves?" and held off patents when the problem was novel, or at least applied more scrutiny, we would have a lot less problem with the patent system.... many of the bad patents (notably the bad software patents) that are causing trouble these days fail my test -- they were not very clever solutions to novel problems, not novel solutions to hard problems.

For those wanting more FUD here is the RIAA's FAQ. For everyone else here is the FAQ from ChillingEffects.org.

MP3 is patented. Chilling or not, just about everyone is using it.

ISPs do not get their protection from common carrier status. They get it from the Safe Harbor provisions of the DMCA. This protects ISP from copyright violations committed by their customers, as long as the ISP follows the required procedures. The first is to register with the government as an ISP. Favoring their own services would not affect their Safe Harbor rights.

However, if you were unwillingly sharing your service, you would not be liable. If someone taps into your cable without your knowledge, you can't be held liable for theft of service.

Because of threats from BayTSP against my ISP on chillingeffects.org. I blocked BayTSP from my router, and sent a registered letter to the company informing them that any attempt to gain access to my machine would be considered by a violation of the DMCA (attempting to counteract my router's defenses), and also since I have well more than $10,000 worth of data on my network, I would consider a further attempt to be a crack attempt, which is my state was a felony offense. (Under my state's law we have some very strict computer crime legislation.)

Since then, they've left me alone, so I assume that such an approach would work, although IANAL.

Your representative in your Congress, or the local equivalent, or the local Dictator, according to the country/state you live in.

More seriously, the USofA ``Congress revised the federal copyright statute in 1976 to provide copyright owners with statutory protection for derivative works. A derivative work can take the form of "any . . . work [that] may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represents an original work of authorship, is a 'derivative work.'" (emphasis added) 17 U.S.C. 101 (1994).

In short, a derivative work is a whole work based on one or more other whole works. ''

(from here)

There is an equivalent provision in the Brazilian Author's Rights Law (Law 9610/98), roughly translated: section 5, "for the effects of this law, it's considered: [...] VI. work: [...] (g) derivative work: the one which, altough constitutes a new intelectual creation, results of some transformation of the original work".

PS. to the Brazucas here, the laws governing software copyrights are the Software Law (9609/98) and the Author's Rights Law (9610/98). (links to the Ministry of Science and Technology.