DMCA Abuse Widespread

Doc Ruby writes "Via TechDirt, the news that despite the intent of the Digital Millennium Copyright Act, it's very popular to abuse the law by using it merely to compete, without legal basis: 'Supporters of the DMCA claim that only an occasional improper takedown notice gets through. Some new research suggests otherwise. Over 30% of DMCA takedown notices have been deemed improper and potentially illegal.'"

Comments

Power to abuse?

[Dubpal]

If you asked those Swedish guys over at thepiratebay.org (a search engine for .torrent files), I'm sure their data would show higher than 30% abuse.
Their legal threats page is a hoot.

On a more serious note, laws like the DMCA that put (arguably) too much power at the hands of copyright holders were always going to be susceptible to abuse. Remaining on the subject of torrent search engines, lokitorrent.com pulled its site down after threats from the MPAA who cited the DMCA, without even going to court. (They later went to court, where it was ruled that the domain owner release all visitor data to the MPAA.) With power like that, where's the incentive not to abuse it?

Re:Power to abuse?

[Prospero's Grue]

With power like that, where's the incentive not to abuse it?

Agreed. To use a phrase I heard some time ago; it's how we ended up with a legal system instead of a justice system.

Re:Power to abuse?

[PunkOfLinux]

anyone with half a brain (sometimes less) can realize that the DMCA was only passed because the copyright holders felt they needed a way to 'protect' themselves. So, they pay the gov't to make a new law that really ONLY protects the copyright holders.

Re:Power to abuse?

[richwmn]

Power tends to corrupt; absolute power corrupts absolutely Lord Acton, a British historian of the late nineteenth and early twentieth centuries. Used as the basis for Animal Farm by George Orwell

Re:Power to abuse?

[meringuoid]

Used as the basis for Animal Farm by George Orwell

I'm not certain that's quite what happened. The Animalist Revolution was corrupted not by power per se but by Napoleon. Had the Revolution remained under Snowball's leadership it would probably have been rather more successful; however, Napoleon and Squealer (who were already complete stinkers) took every opportunity that came their way.

It wasn't so much that power corrupted, as that power attracted the corrupt and gave them even greater scope within which to practise their corruption...

Re:Power to abuse?

[Anonymous Coward]

And it is also proof that we as a society are circling the drain.

I am an engineer, scientist and hacker at heart. and because of the DMCA and patent laws I am forced to be a criminal to continue to invent, engineer and think.

when you make laws that overnight put a wide swath of the populace into the criminal segment then you know that the corruption that is leading towards complete opression is nearing completion.

Personally I cant wait for all of you to look suprised when they mandate that every american is required to have a passport and use it for interstate travel. and I'm betting that it will be here before 2008.

So I simply acknowlege that I must break laws to continue and therefore move myself into the underground. Release the information on webboards in free countries like the Former soviet union under a untraceable psyudonym.

Thanks American Government! The past 8 years have taken all of the countries brightest and made them criminals of the state.

Re:Power to abuse?

[DrSkwid]

DMCA will collapse society, DRM'd Film at 11

Re:Power to abuse?

[tylernt]

I think you have a while to wait. Usually lots of people have to get killed before a revolution is born.

Re:Power to abuse?

[tylernt]

"passport and use it for interstate travel"

At first I thought this was kind of stupid since the federal gevernment doesn't have that power. Then I remembered that the federal goverment has ruled that marijuana grown in California, sold in California, and consumed in California constitutes interstate commerce and can therefore be regulated or banned by the federal gov't.

Yeah, we're screwed.

Re:Power to abuse?

[Kjella]

And P2P pirates really ONLY serves themselves, not "to promote the progress of science and useful arts". If we try to pretend that copyright is a balance between the creators and consumers of IP, there's not much doubt that neither side is playing very nice. The problem is that they are trying to give pirates the shaft, and instead end up giving the consumers the shaft. Not a very nice way to behave, and it makes pirated products stand out as vastly superior because mp3s are delivered in the format I want, aren't infected with rootkits and don't restrict my playing or burning to special apps I neither want nor need. Will giving consumers what they want lead to piracy? Yes. Will not giving consumers what they want lead to piracy? Moreso.

Re:Power to abuse?

[ultranova]

Hayek has a chapter in his book called "Why the Worst Get on Top" that basically makes your point meringuoid, except that he says it is inevitable with a statist form of government that the very worst (i.e. most evil) will get on top with a capitalist/laissez-faire system, unless it becomes co-opted by communistic or fascistic forces from within, there would never be the system of rewards and power present to make the job worthwhile for the evil-minded man.

There is two problems with argument.

First, it is inevitable that a laissez-faire system of any sort is taken over by someone wishing to establish a dictatorship. A laissez-faire system, by definition, means a system that is not overseen by anyone; it is simply a state of anarchy, and anarchy always ends with someone taking the reins of power - after all, there's people who want power and no one to stop them.

Second, for a wicked man, the ability to do evil and make others suffer is in itself a reward. It is insufficient to consider only selfish evil - the willingness to harm others to benefit yourself - to understand human psyche. You also have to consider malicious evil, the willingness to do harm to others even when it doesn't benefit you in any way, and in extreme cases, even when it does you harm too.

In short, no kind of system can possibly remove the reward for gaining power, since the one in power can make his own rewards, and some sick bastards get their kicks from the abuse of power itself rather than any benefit for themselfs gained from said abuse.

A helpful guideline:

[meringuoid]

Whenever a controversial law is proposed, and its supporters, when confronted with an egregious abuse it would permit, use a phrase along the lines of 'Perhaps in theory, but the law would never be applied in that way' - they're lying. They intend to use the law that way as early and as often as possible.

cf: DMCA, Patriot Act, Prevention of Terrorism Act (UK), Enabling Act (Weimar Germany)...

Re:A helpful guideline:

[Yahweh Doesn't Exist]

on the Prevention of Terrorism Act (UK), it is interesting to note that Tony Blair said it would never be used to prevent legitimate protesters. then, a matter of days later, it was used to eject a pensioner who objected to the war on Iraq from the Labour party conference. how the hell is a pensioner objecting to a war a terrorist?

Re:A helpful guideline:

[PhilHibbs]

Minor point, I think the act was used by the police to prevent him from re-entering. They just used regular bouncers to eject him.

Sometimes the police deliberately push the envelope on what they consider to be bad laws in order to provoke reconsideration of the law. There's a possibility that this is one such example, by a policeman who doesn't like the totalitarian direction that we are taking. Not all police support the creation of a police state, it gives them more work to do for one thing.

Re:A helpful guideline:

[meringuoid]

how the hell is a pensioner objecting to a war a terrorist?

Bushian reasoning:

1) This is the War On Terrorism.
2) You are either for us or against us.
3) If you are against us in the War On Terrorism, then that makes you
4) A Terrorist.

Blairian reasoning:

1) I'm doing the Right Thing, because I'm a pretty straight kind of guy, ok?
2) And I think Jack has the right to make his speech without impolite interruptions.
3) And we really shouldn't get sidetracked by theoretical arguments about civil liberties, because terrorism is really a very serious threat.
4) And I should point out that I had absolutely nothing to do with the incident itself.
5) And I don't think that a blame culture is very productive at all, just ask Peter or David, so it really isn't helpful to go talking about whether anyone should resign.
5) It's in the past now, so we should all move on and deal with the new problems that are ahead of us, going forward into a better and fairer Britain in the 21st century.

Re:A helpful guideline:

[FireFury03]

Minor point, I think the act was used by the police to prevent him from re-entering. They just used regular bouncers to eject him.

You are correct - the bouncers ejected (read: assaulted) him and then the police "detained" him under the anti-terrorism laws.

Then to add insult to injury, Blair still tried to push through a law that would allow the police to detain anyone for 90 days without charge, defending it by saying the police were very responsible and would never abuse a law.

This is a prime example of why excessively broad laws are always a bad idea - whilest it may improve the ability to legitimately target people doing wrong it will always be abused by someone as well.

Through all the IRA attacks whilest I was young the constant message delivered by the UK government was that if we changed the way we lived because of terrorism then the terrorists have won... well I guess we know who's won now then don't we? (Amazingly enough, Blair used the "if terrorism changes the way we live then they've won" speech in a justification of curtailing civil liberties in the name of anti-terrorism!)

Re:A helpful guideline:

[meringuoid]

(Amazingly enough, Blair used the "if terrorism changes the way we live then they've won" speech in a justification of curtailing civil liberties in the name of anti-terrorism!)

That was funny, but the most entertaining piece of hypocrisy on this issue is this:

On the 90-day internment law: Blair says that the police want to be able to imprison people without charge for three months for investigation and interrogation. He says that on this matter the police know best and we should listen to them and give them what they need to make us safe.

On the late opening law for pubs: police representatives say that it will be a disaster and lead to even greater alcohol-fuelled public disorder and random violence. Blair completely ignores them and goes right ahead with changing the law so that (starting today) we British people are free to drink all night if we see fit to do so.

I'm not sure quite how these two Mr Blairs manage to live together in the same skull. Libertarian and fascist in one. Or maybe he's hoping that we'll all be to pissed in the pub to get pissed at him...

Definition of occasional as used by DMCA enforcers

[jurt1235]

SARCASM ON: From the rules and regulations of the DMCA user group (Not publicly accessible, so this will cause a take down notice):
Article 2b:
Wrongful notices.
An notice is considered wrongful if the party who send the notice is sued for this notice, and the highest court willing to hear the case decides that the notice has been send wrongful.
Article 2c:
Allowed wrongful notice percentage.
If not more than 60% of the notices gets rejected by a court, the sending of these notices will be considered as an occasional mistake due to the murky nature of the person or company who got the notice initially. :SARCASM OFF

The DMCA is only a symptom.

[Elrac]

The real disease is the fact that the USA's elected lawmakers are, in many if not most cases, susceptible to pressure and/or bribery by the industry. This is how many of these asinine laws originated.

Unlimited legal campaign contributions, indeed!

Highly disturbing

[sdo1]

Over 30% of DMCA takedown notices have been deemed improper and potentially illegal

What I find most disturbing about that statement is that it implies that something a bit less than 70% of DMCA takedown notices are not improper and not illegal. That is a law that is far over-reaching, draconian, and designed for abuse. I guess that's what happens when one lives in the good 'old U.C.A (United Corporations of America).

-S

Re:Highly disturbing

[jc42]

What I find most disturbing about that statement is that it implies that something a bit less than 70% of DMCA takedown notices are not improper and not illegal.

Actually, that's a standard logical fallacy; it doesn't imply any such thing. Even if the 30% figure were accurate, it can only be a minimum estimate until the cases are settled in court. But most are settled out of court, mostly for financial reasons (the cost of an individual fighting a corporation), so their legal status can never be known. If you want to make an inference like this, you should read it as "at least 30% of takedown notices are invalid".

But note that that 30% only applies to the specific sample studied, and it wasn't at all a scientifically-chosen random sample. The sample was what statisticians call "self selected", so as a statistic, the number is rather bogus.

This isn't a criticism of the people who did the study. If you read TFA, you'll find that they didn't claim that 30% of DMCA notices are improper; they stated clearly that about 30% of the cases they studied were improper.

So that 30% isn't a statistic; it's merely an example of the DMCA's effect on a small sample of people who are willing to go public with their story. TFA doesn't actually teach us much about the overall impact of the DMCA.

But I suppose that's a bit too precise for a /. discussion. Radical over-generalization (along with reasoning from the inverse) does seem to be the order of the day hereabouts.

The ESA vs HoTU

[spyrochaete]

The ESA (Entertainment Software Association), a body representing many software companies, sent a threatening letter to Home of the Underdogs a few years ago, demanding that they cease the sale of all copyright materials from their website. They state to be standing behind the DMCA.

IDSA is providing this letter of notification pursuant to the Digital Millennium Copyright Act and 17 USC =A7 512 (c) to make you aware of material on your network or system that infringes the exclusive copyright rights of one or more IDSA members.
...
IDSA has a good faith belief that the Internet site found at theunderdogs.org infringes the rights of one or more IDSA members by offering for illegal sale one or more unauthorized copies of one or more game products protected by copyright...

Anyone who has seen this website knows that they do not sell games at all and never have. They provide abandonware downloads - games that have been out of print and not for sale for many years - in the interest of the preservation of culture.

Just another example of clueless bullies hiding behind the DMCA, seemingly for financial gain, but for properties not even for sale! Read the full letter and the webmaster's commentary for full details. http://www.the-underdogs.org/partdeux.php

Accused until proven innocent

[saskboy]

With the fall of the Canadian Liberal government coming on Monday, Canada will be safe from Bil C-60 the Copyright Act amendment until at least the early Spring. This gives our American oppressed neighbours time to find a job north of the 49th, and spend time backing up their "content protected" CD collection to hard drive, or iPod without fear of abuse from the local constabulary.

Why is this surprising?

[d3ac0n]

I mean, does anyone here really think that if a law puts that much power into the hands of an organized business cartel, that it's NOT going to be abused? Did anyone here NOT see this coming? Frankly, with a law as broad and Monopoly empowering as the DMCA, it was only a matter of time. And not a very long amount of time either.

Now, keep in mind, this is coming from a registered N.Y. State Conservative Party member, who listens to Rush Limbaugh every day, and voted for W. TWICE.

The amount of Individual Freedoms this law steals from people is abhorrent. It offends every Freedom loving, Patriotic bone in my body. Unfortunately, Most people don't see this as a priority. Like many of our laws, it's a "Creeping Freedom Stealer". Much like the old story of the frog in the frying pan, most people won't notice it taking thier Freedom until it's too late.

DMCA is a Good Thing

[repruhsent]

The DMCA really is a good thing.

Congress passed the DMCA a long while back (a few years now, IIRC). It's obviously withstood the test of time; if there was something illegal about it, the Supreme Court would have already overturned it. So, I don't see where anyone can complain. Obviously the only people who have problems with it are the software/movie pirates, and piracy is bad, right?

We should all just try to get along with the DMCA instead of constantly badmouthing it. It's obviously a valuable and appropriate used piece of legislation.

Partisan tactics

[headkase]

I don't get you US consumers. What can you do to resist? Slashdot is great for bitching and whining but other than awareness-of does little to correct the issues. I don't need to yet in my country (Canada) but you guys from my point-of-view need to engage in some armed insurrection. Not physical arms of course, somebody might get hurt. Instead how about organizing and really using the first box in the defense of liberty, the soap box?

Here's the quote about boxes if I remember it right:
There are four boxes to defend liberty with: the soap box, the jury box, the voter box and the ammo box. Use in that order.

Self Sustaining Argument

[wellybog]

This story just served to remind me how pointless it is to try and enforce law on the internet.

Perhaps the various copyright enforcement agencies would do better if they changed themselves into education agencies.

It doesn't take a genius to understand that piracy kills the product being pirated. Most people like the own the "genuine" article too though (so you make your money in the long run).

Oh hell... this is a big old can of worms. They invent an anarchic network topology (the internet) that is self sustaining and deliberately uncontrollable - then they try to control it.

How stupid is that.

Re:I used to think Republican = Limited Government

[TheRaven64]

George Washington was right when he told the American people to avoid a two party system at all costs.

I am not an American, so this may not be accurate, but it is my understanding that Washington opposed the idea of political parties altogether - not just the situation that exists when you have only two. He believed that all candidates should stand on their own beliefs, not on a platform that is only a lose fit for their opinions but popular with a large, unthinking, group of the electorate.

Chilling Effects

[Misch]

ChillingEffects.org keeps a library of submitted DMCA takedown notices.

No

[Create an Account]

If a weak man foolishly walks into an alley in a bad part of town and gets mugged, he is foolish, true. But that does not remove the blame from the mugger.

If a woman wears provocative clothing in a bad part of town late at night and gets raped, maybe she was foolish for attracting attention, but she is not to blame for the rape. The rapist is.

If you leave your home unlocked and you get robbed, you will probably feel angry at yourself for leaving the house unlocked. The blame for the robbery, however, is purely the robber's.

If the American electorate is overly susceptible to media influences, call them gullible. That does not make the shark-like actions of the corporations any more acceptable. Even using the metaphor of a shark (they shouldn't be blamed; it's in their nature) is a better reason to take precautions against them, not a worse one.

If you're still reading this, I had a previous discussion on slashdot where we talked about some of this:

http://yro.slashdot.org/comments.pl?sid=167485&cid =13964842

Don't atack the DMCA, attack the root

[argoff]

Attacking the DMCA is like attacking the leaves of a vine, and not the root of it. No matter how hard you pluck off those leaves, they will always grow back in some other form untill you attack the root.

The root of the problem here is societies own belief in copyrights. The DMCA is simply taking it to it's logical conclusion, along with the continuious extensions, and all the other abuses associated with copyright. People need to stop looking at copyrights as ever being a benefit, but rather as a burdon that was bearable 25 years ago when the biggest issue was copy machines and copyrights only lasted a few years. Not anymore. The burden copyrights require is too much to bear in the information age. Contrary to the hype, copyrights don't help many artists, and are anti free market. They are moral sewage that has robbed our culture and given it to hollywood, and they make it so that software companies who would otherwise strive to serve us - strive to controll us. The copyright system needs to die and take it's place on the trash heap of history.

"Safe Harbour" conflict with Anti-Spam/Virus!

[lkcl]

A service provider must satisfy the following critical elements in order to qualify for the "safe harbor" or protection from liability provided by subsection 512(a) (note that subsection 512(k)(1)(A) defines "service provider" as used in subsection 512(a)):

  (e) The service provider must not modify the communication selected by the Internet user [512(a)(5)];

so, if you "modify" the email to put "X-Spam" tags in it, you no longer qualify for the "safe harbor" provisions.

in fact, if you put ANY headers with the message, then the communication is "modified".

DMCA victim

[romka1]

I fall in those 30% for sure, the hosting companies when recieving DMCA notice will not bother to validate it and will not bother to hear a counter argument in your defence, its easier for them just to unplug your server, even though the law states that they have to allow for a site owner to defend against the take down notice.

Especialy if the content of the site is somewhat questionable and the company issuing the take down notice is big (like microsucks)