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Using the DMCA Against License Violations?

Posted by Cliff on from the stuff-to-think-about dept.

bcrowell asks: "Here's a moral conundrum for you. The much-hated DMCA can be a tool to enforce copyleft licenses, and in my case, it may be the only effective tool. I'm the author of some free physics textbooks (all free as in beer, some free as in speech) that are available under the GFDL and OPL copyleft licenses. I've learned that there's a guy on eBay who is selling my books on CD and violating the license. (Selling is allowed, since they're free-as-in-speech, but he's violating the license in various ways, such as not informing his buyers about the license, and selling them under a different title and using the tables of contents in his ads without showing the license or listing me as the author.) It's not just me. He's doing the same thing with other copylefted books, such as this one." The submitter is worried about the ethics behind using the recent misuses we've seen so far. Those interested in this question might also be interested in Prof. Felten's answers from his recent Slashdot interview.

"eBay has several different mechanisms for complaining about this, and I used one of them. Other people have complained too, but so far the result just seems to be that eBay deletes the listings of the items (which have already been sold). Meanwhile the guy is still violating copyleft licenses (as well as selling other copyright-violating stuff, such as screensavers containing commercial porn images).

Apparently the most effective way to deal with this on eBay is to participate in their vero program, which basically means sending the DMCA Police after the guy. For instance, if I wanted to sue the guy (which I don't), I'd need to know his name and address. The DMCA says that eBay has to provide that info to someone who complains about a copyright violation.

It seems like it would be a similar deal in the software world. The conventional wisdom about how to prevent infringement is to GPL your code, and transfer the copyright to the FSF, which will contact license violators and (theoretically) sue them if it comes to that. So how long will it be until the FSF is asked by an open-source developer to invoke the DMCA in order to deal with a license violation? In my own case, should I go ahead and join eBay's vero program? It would make me feel like I was in bed with the enemy, but it does seem like it would give me some very effective options for dealing with the situation. For instance, members of the program can have eBay run automated boolean searches for copyright-violating items, and get the results e-mailed to them periodically.

One possible reply to my question is 'Why do you care?" The problem here is that this guy is doing exactly what RMS originally designed copyleft to prevent: he's taking free information and making it not-free. His customers don't know that the books are copylefted, and have effectively had their own freedom taken away: they don't know they can modify the books, copy them, or sell them."

12 of 331 comments (clear)

  1. Don't give in... by c0dedude · · Score: 5, Insightful

    Don't give in man. The DMCA will eventually be overruled, using it to bully people into compliance makes you as bad as all the other companies who use it. Normal copyright laws make it illegal to break the lock or scale the fence, the DMCA makes it illegal to look at the gate. Sue the guy for breaking your copyleft license. That's breach of contract, I think, and I think you're entitled to the profits. IANAL, and this is not legal advice. So don't sue me.

    --
    Since when has this country used intellectual elite as a pejorative term?
    1. Re:Don't give in... by aardvarkjoe · · Score: 4, Insightful

      I rather agree with the parent. Talking to a lawyer instead of Slashdot would probably be a good start ... I'm sure that you don't have to invoke the DMCA just to get the guy's name and address.

      --

      How can we continue to believe in a just universe and freedom to eat crackers if we have no ale?
    2. Re:Don't give in... by connsmythe96 · · Score: 5, Insightful

      The problem is that he doesn't, at this point, know who exactly the guy is. How can you sue an ebay account? The DMCA forces ebay to give him the guy's real name, so he could sue the guy. Should he use the DMCA to get the guy's name, or just try to keep blocking all the auctions as they appear?

      --
      if(!cool) exit(-1);
    3. Re:Don't give in... by ZenShadow · · Score: 5, Insightful

      The DMCA will eventually be overruled, using it to bully people into compliance makes you as bad as all the other companies who use it.

      Using this logic, then suing someone is bad in general, and I definitely disagree with that concept. It is certainly used FAR more often than need be to obtain results, but that's a different issue.

      The difference here, assuming he does things ethically, would be this:

      The RIAA sues a couple of college students for $98 BILLION DOLLARS for putting up a song sharing server on a college campus.

      This guy sues the jerk who's publishing his work to require him to either (a) stop doing it, or (b) do it properly, and maybe if he's in a really bad mood requires that the guy turn over some of the profit, but probably not.

      See the difference?

      Now, I can't speak for the motives of the article's author, but I suspect it's rather like the second version. Definitely much more so than the first.

      The first is bullying. The second is protecting your rights.

      Big difference.

      --
      -- sigs cause cancer.
    4. Re:Don't give in... by mbogosian · · Score: 4, Insightful

      Copyright law does allow you to sue for punitive damages in addition to actual damages (provided you've registered your copyright with the copyright office). But I'd have to find a lawyer who'd take it on a contingent fee basis, or else pay a lawyer out of pocket. That doesn't seem very practical to me, since I don't know the guy's name, don't know whether he even has any money, etc.

      This may be a really stupid question, but have you tried contacting him directly and asking him to correct the behavior? Who knows? He might be willing to comply without a fuss, especially if you told him what corrections to make so that he could continue selling. I know you can always send an e-mail via ebay's "Ask seller a question" link. I never like to bring in lawyers unless absolutely necessary. Whenever they are involved, they seem to emerge as the only winners.

      If you wanted his address, you could probably get with a bit of social engineering. Trying sending him an e-mail from one of his closed auctions asking "where do I mail payment?". He'll probably respond with at least a PO Box.

      --

      moto411.com
  2. Good Applications Do Not Make Good Ideas by Snowspinner · · Score: 5, Insightful

    Just because there are some good applications of the DMCA does not mean that the DMCA is a good law. There are things that you can do with a gun that are not bad. But that doesn't make guns good. Microsoft makes some good products. That does not make Microsoft good.

    --
    Philip Sandifer's academic website
  3. The Law is a tool.... by TedTschopp · · Score: 5, Insightful

    The Law, in general, is a tool to create justice. Use it as such, to do otherwise is injust. Do not use the law to create wealth. Do not use the law to create righteousness. Neither should the law be used to allow lawlessness or injustice. The law doesn't define what is right it is a tool to set the wrongs right.

    The problem with our society is that we think that the law defines the boundries of right and wrong behaviour. It isn't. And it never will.

    Ted Tschopp

    --
    Fantasy remains a human right; we make in our measure and in our derivative mode... -- JRR Tolkien
  4. Oh, for crying out loud. by Planesdragon · · Score: 5, Insightful

    It's a copyright violation. The fact that a clause you want to use (ISPs having to reveal copyright infringer's identities) was passed in a bill with clauses that you don't like shouldn't matter. It's highly unlikely that the law will be overturned as unconstitutional (IMO, it's more likely to be limited to works nominally protected by copyright), so it's not going away anytime soon.

    Either you're for "information wants to be free" and you don't have a thing to complain about, or your concede that there should be limits on individual freedoms, and thus recognize laws like the so-called DMCA as applicable limits on freedom for the benefit of everyone.

    FWIW, it's probably easier to call the local US District Court and bug them about it. If the bloke's as bad as the article says, then he'll go down quickly enough.

  5. Contact him by Sancho · · Score: 4, Insightful

    The first step you should take is contacting the seller and explaining the situation. He may not even realize that he's violating the terms of the license. Don't make the mistake that so many corporations do of thinking/hitting with your lawyers first.

    If he refuses change the auctions, contact Ebay. Forward them copies of the emails you and he have exchanged and explain the situation. Let them handle it.

    Licenses are there to protect our works. It's not bad juju to go after violators, it's just bad juju to abuse the law and licenses, and (in my opinion) to not even try to settle the issue without lawyers.

  6. eBay Feedback? by mikeboone · · Score: 4, Insightful

    How about contacting the auction winners through eBay. Explain who you are and that the item they just purchased was freely available. Ask them to leave negative feedback for the seller. A few bad ratings could go a long way. Maybe set up a web page and have them link that URL in their feedback.

  7. Close, but not exactly . . . by Selanit · · Score: 4, Insightful
    Copyright isn't about money, it's about protecting the rights of the author. Whether they choose to make money from it is irrelevant.

    Actually, copyright is about providing authors with an incentive to create new works, on the theory that the advancement of knowledge (and art, literature, etc) leads to the betterment of society as a whole. The form that incentive takes is a temporary monopoly on the dissemination of the work. This monopoly is not an inherent right to be protected, but an extra right granted by the government and encoded in law.

    Traditionally, authors use that monopoly to make money by selling copies of the work to people. You are absolutely correct, though, to point out that making money is not the only way in which the copyright monopoly can be used. In this case, the author has decided to make the work available to as many people as possible for as little cost as possible. The price he exacts is not monetary but legal -- in exchange for receiving the work, the customer must agree to abide by the terms laid out in the respective licenses. This ebay seller has violated those terms. He has not paid the price named by the author, and therefore is not entitled to possession of the work.

    On a side note, I applaud the author for releasing his books under these terms. It is consonant with the original goal of copyright: to better society through the advancement of knowledge. Bravo.
  8. Use Ebay against him by kalidasa · · Score: 4, Insightful

    Take your books, put them on your own cds, charge about the same amount he does - but in your ebay ads, point to a URI where they can download them for free. Pretty quickly his market will dry up for your stuff.