Slashdot Mirror
eBay Beats DMCA
pgrote writes "eBay won a court battle that brought to light a key provision of the DCMA. The judge says, "Although it may facilitate the sale of pirated material, "eBay does not have the right and ability to control such activity," a standard required by the Digital Millennium Copyright Act, the judge wrote." So does that mean that the P2P file trading programs are legal since the pirating occurs off the sites? This is could be a very important precedent. " In talking to some lawyer friends, their perspective on part of the Napster case was that by being very difficult in the beginning, Napster almost doomed itself. But, as always, IANAL ? .
I do remember that story and since then I've done a little foot work to see what the deal is.
Looking to the DMCA itself, what happens when infringement is suspected? Well copyright holders (or more typically their lawyers), can send a letter to your ISP (or other network provider) and they then cut off your service or risk being sued. Actually if you look at the wording in the DMCA, it appears that the intent was that action be taken only if you are actively infringing on copyrights, such as hosting files on a website, at the time of the receipt of the copyright holder's letter (amended section 512 of the Copyright Act). One problem is that the limitations on damages appear to allow an ISP to cut off all service whenever a notice is received without any repercussions and regardless of any actual infringement (Section 512(g)(1)). A second problem is that even if you aren't infringing at the moment, the fact that someone said you were might be enough to negate the ISP's protection should you infringe in the future (see Section 512(c)).
The DMCA does explicitly allow you recourse however. Pursuant to Section 512(g)(3) you can file a counter notice with the ISP and they have to restore your access within 14 days unless the copyright holder files for a court order against you. I don't know how this will intersect with the notion of arbitrary service termination in many license agreements, however. Furthermore, if you prove in court that you did not commit the act of which you are accused then the accuser may be subject to paying monetary losses, punitive damages and legal costs.
IANAL, but I am a concerned citizen (IAACC, anyone?)
You must be reading a different article, because the one linked to talks about a "ruling". The "dismissal" mentioned is a sloppy non-legal refernece to the request for damages, not of the case itself.
Hint to moderators: read the referenecs before moderating comments "insightful" or "informative".
If you were blocking sigs, you wouldn't have to read this.