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Are DMCA Abuses a Temporary or Permanent Problem?
The DMCA is known mainly for its two most controversial provisions: the ban on technology to circumvent copyright restrictions, and the procedures by which ISPs must respond to "take down" notices if a third party claims that one of the ISP's users is violating their copyright. The first of these, I am opposed to in principle; the second, I am not opposed to in principle but I think is too easy to abuse in practice -- because I think incidents like the Graef case and my own limited court experience in related areas has suggested that the protections against DMCA-type abuses are very weak.
First, I'm against the anti-circumvention provision in principle because I agree with the position espoused by the EFF that computer code is protected under the First Amendment, even if some uses of that computer code may be illegal. After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was protected speech! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection. Just because X is illegal does not mean that tools or instructions for doing X should also be illegal.
With regard to the second provision, I'm not against requiring ISPs to take down infringing material on receipt of a notice from the copyright holder. But in practice there are two avenues for abuse here: (a) the party sending the take down notice can make statements that are not technically false, but which have the effect of persuading the ISP to take the material down, or (b) the party sending the take down notice can simply lie -- because the truth is that in too many cases, false statements made "under penalty of perjury" are not prosecuted, or even noticed, by the courts.
The EFF has already done a good job documenting abuses under the DMCA, and I'm not going to repeat all of that here. My argument is that these are not just temporary problems with a relatively new law, but rather that the abuses are the result of realities that won't change any time soon: ISPs being too busy to look closely at every complaint, and courts being too busy to go after everyone who violates court rules to get what they want. And thus it does no good to say that the DMCA would be fine if only enforcement actually got done properly instead of the ham-handed way it's been carried out so far, because that's not going to happen.
As I said, I think that if you have a bona fide case against a party, there's nothing wrong with taking action against them that would otherwise be considered a violation of their privacy and other rights. I've never sent a DMCA take down notice myself, but I've been involved in court cases in which I asked the judge to sign an order requiring a third party to turn over information about someone that was pertinent to the case. I don't consider that an abuse of the system, if the information you're after is relevant.
I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me... Later, in what will not come as a huge spoiler to my fellow male Seattle residents, she apparently decided that, being a non-overweight, non-single-Mom, non-sexually-repressed girl in a city full of rich single guys, she was under no obligation to pay me back, and said, "Go ahead and sue me". Anyone who knows about my sideline taking spammers to court would tell you, it is not a terrifically smart move to say to me, "Go ahead and sue me". So, since I was going to be at the courthouse for an upcoming case against a spammer, I figured, why not, and filled out a Small Claims form with the defendant's address listed as "to be determined", since all I had was her cell phone number. Then I asked the judge to sign an order asking T-Mobile to give me the rest of her information so I could serve the papers on her. The judge signed it, I mailed it off to T-Mobile, and three weeks later T-Mobile sent me a letter containing her address, where I had the papers served. Most people don't know it's possible to do this just in a case where someone owes you $100 and all you have is a phone number, but that's just because a lawyer would never bother with such a small case, and most non-lawyers don't know the option exists -- and of course, it also depends on the judge, who may or may not sign the order.
(In that vein, people always ask me, is that sort of thing really worth the time? In this case, since I was going to be at the courthouse anyway, the extra time to write the motion, get it signed, and mail it off, was less than 30 minutes. But I was mainly curious about whether or not it could be done, and how much privacy protection there really is under the law, and knowing that was worth more to me than the $100 anyway.)
So I don't think it's unethical to request such information if you have a genuine case against a party. But while I don't think that what I did constitutes abuse of the system, I think it clearly shows how the system could be abused. Nobody checked my ID when I filed the case or asked the judge to sign the subpoena; I could have been anybody, and I could have disappeared once I had the information. (I had T-Mobile mail it to my address, but I could have just as easily had them mail it to the court, and then gone down and asked to look at the court file.) DMCA opponents should be aware that even without the DMCA, privacy protections are not as great as most people probably think they are.
As a result, I'm especially nervous about laws that enable abuse based on copyright assertions, because almost all of the legal threats we've ever received at Peacefire were based on what I considered to be bogus "copyright" claims. In 1997 we published a program that you could run on any computer with CYBERsitter blocking software installed, and it would decrypt the file that stored CYBERsitter's "secret" blocked-site list, and print it out in plain text. The CEO of CYBERsitter claimed that we were "violating every intellectual property law ever written" and sent threatening notices to our ISP demanding that they remove the program. I argued that every byte of the decryption program was our original work, so it didn't violate their copyright. In fact, it didn't even enable violations of their copyright, because it didn't make it any easier for someone to distribute illegal copies of their program, and I also said the decryption program served a worthwhile purpose by allowing customers or potential customers to see what the program really blocked. (Although to me, the enabling issue and the "worthwhile purpose" issue were secondary to the primary point, that original works of computer code should be protected by the First Amendment.) Fortunately our ISP stood their ground, but if the DMCA had existed back then, CYBERsitter could have invoked it, and possibly the extra pressure might have caused our ISP to back down. (Blocked-site-decryption programs were originally exempt from the DMCA as a result of the decision of the Copyright Office, but that exemption was revoked in 2006 because nobody had written a new decryption program in three years.)
So that was an example of how a company could intimidate an ISP into taking down material, without technically lying about the situation, but tacking on the words "copyright violation" and hoping the ISP would capitulate. What about cases where the sender of a DMCA take down notice just lies?
The Dutch activist group Bits Of Freedom conducted an experiment in 2004, in which they signed up with 10 different ISPs and posted a copy of a work that was clearly labeled with a notice that the author had died 100 years ago and the copyright had expired. Then they sent fake "complaints" to all 10 ISPs from an anonymous Hotmail address. 7 of the 10 ISPs removed the content immediately, and one even replied to give the personal details of the account holder, without being asked to do so. So completely fictitious complaints do apparently work. The DMCA does more protection than that because it requires the complainer to make a copyright claim "under penalty of perjury". But how much assurance does that really provide?
No one has yet tried to get our site shut down with a copyright claim or other accusation that was simply made up out of whole cloth. But my experiences in other areas have left me without much confidence in statements that are made "under penalty of perjury". The times I've been to court against spammers, I usually get to watch a few other Small Claims cases being tried. Probably at least once every time that I've been there, it's come to light that some party in a case said something that they almost certainly knew was not true, and I've never seen a judge do anything about it -- and court employees who have been there much longer have said they've never seen it happen either. (Judges are far more likely to get upset about people speaking out of turn. It's OK to lie, as long as you do it while the judge isn't talking!) It's true that Small Claims court is for resolving small matters, but lying under oath in Small Claims court is still a felony, punishable at least in theory by up to 10 years in jail. (And in any case, lawyers have told me that even in higher-level courtrooms, most false statements don't get anyone in big trouble. High-profile cases like Martha Stewart are the exception.) I don't think that everyone who lies under oath should go to the big house for 10 years. But I have no faith in the DMCA just because it requires accusatory statements to be made "under penalty of perjury", when judges usually let false statements under oath go completely unnoticed.
I doubt that a lawyer would risk their career and even their freedom to make up a completely fraudulent DMCA claim against us, such as claiming a page on our site was a ripoff of something originally produced by their client. But I don't think it's out of the realm if possibility that a lawyer would claim that, for example, a parody of one of their logos that appeared on our site, was a "copyright violation" -- even though the company would almost certainly be advised by their lawyer that such parodies are protected speech, which means their statement would constitute perjury, but it would probably never be punished.
The low point of my own confidence in the enforcement of anti-perjury laws, came when I sued a spammer who appeared in court and claimed that he had absolutely no knowledge of the spam being sent, and had never accepted any orders for spamming of any kind, while the judge, who appeared to hate anti-spam cases even more than most judges did, kept haranguing me for suing a clearly "innocent" person. I then played a recording of a conversation that I had with the spammer over the phone, pretending to be an interested customer (with a disclaimer played at the beginning of the call saying that it could be recorded, in order to make the taping legal), in which he said, among other things:
"I mean, we have all their information to back up any email we send them. If we have their ISP information, we can prove that they've given it out, because you can't get someone's ISP unless they've given it to somebody." [sic -- he meant "get someone's e-mail address", although the statement is still wrong]
"Do you already have your creatives and everything? So I've just got to upload what you have and just blast it out?" [note: "creatives" are copies of ads that sent out for you by advertisers and spammers]
"It's a United-States-based company but they pump everything through China and then it comes back to the United States."
The judge appeared very flustered at that point and started accusing me of "entrapment" (which was backwards -- I'd never heard of the spammer until he spammed me first, and then I called him afterwards, just to get evidence that he was in the spamming business in case he showed up in court and denied it). Since she claimed it was entrapment, I still lost and the spammer walked out home-free, without the judge ever even commenting on the questionable veracity of the statements he had made at the beginning. And that is all the protection that exists in the real world against people making false statements "under penalty of perjury".
The point is that when reading the wording of a proposed law, there's a temptation to think that the scenario described is exactly how the law will play out when it's enforced (see the "Alice, Bob and Charlie" scenario in the Wikipedia entry on the relevant section of the DMCA), and that anyone who deviates from the rules will be punished. But my narrow experience in court, in an area unrelated to the DMCA, taught me some things that several lawyers, with sad smiles, have confirmed to be true throughout the law: (a) judges will do what they want; (b) even if judges do sincerely want to follow the law, they're unlikely to agree on what it says; and (c) courts don't have the will or the time to chase down every person who violates the rules.
Don't judge a law by what it says will happen. Judge it by how it will play out if more than half of the steps in the process get screwed up. Guntram Graef apparently wasn't even trying to do anything dishonest when he got a video removed from YouTube on the basis of copyright claims that turned out not to be valid. Imagine how much abuse is possible when you're gaming the system on purpose.
Please include a link to any lengthy text so I can skip it without feeling guilty next time.
On-topic: all else aside, it's pretty big of Graef to retract his position. I'd be pretty furious if someone harassed my wife regardless of what she was doing at the time, and probably wouldn't be thinking very clearly immediately afterward. I respect the fact that he was willing to work through that and come to a more reasoned view.
Dewey, what part of this looks like authorities should be involved?
That would be like me getting pissed and taking legal action because I was in someone's counter-strike highlight video getting 'pwned'
In a world of acronyms, the words are the real victims.
I'm just waiting until it gets overturned by a judge. I would go to court until the end if somebody invokes it against me.
Custom electronics and digital signage for your business: www.evcircuits.com
because my real life doesn't have enough scams or giant penises after my female counterpart.
Launch every sig.
"but I still think the incident shows why the DMCA is a bad law."
Then by that reasoning, all laws are bad because they can be abused.
I am so going to need to see that.
You seem to be overlooking the put back provisions of the DMCA. The guy who posted the video of the penises attacking the wife's avatar could have just certified to YouTube that the material was non-infringing, and then YouTube under the DMCA would have left the video up (barring any TOS violations), leaving the 2 parties to fight it out amongst themselves in court... with the video remaining up until ordered removed by a court. I am wholeheartedly opposed to the anti-circumvention provisions of the DMCA, but the take-down notice system it created seems to me to strike just the right balance.
we should live without the rule of law, I for one would have to disagree.
I'd have to envy the judge overseeing this case.. "Yes, your honor. They made a video of giant penises bludgeoning a digital representation of my wife." Now THAT is what I want to watch on CourtTV.
I remember Eben Moglen at a panel called "The DMCA and You" confidently asserting that the circumvention clause would be stuck down soon because it so obviously did not fit in with a free society.
audio, partial transcript
My turnips listen for the soft cry of your love
I have several videos on YouTube that are short clips ( 15 seconds) edited in such a way to be a parody and satire of the original work. YouTube keeps taking them down because they said they got a DMCA letter from the content producer.
I've read the law and consulted copyright professionals - everything is in my favor for having fair use rights to make these videos. These guys who are sending out DMCA notices are just being bullies because they know they can shut out little guys without much fear of a counter-DMCA lawsuit for making false claims.
I literally had to put a warning on all my videos to tell these people exactly what the LAW states and that I will use my rights under 512(f) to obtain civil remedies against anyone who makes false claims. So far, my material has been up for several months since without being pulled. Coincidence?
Lord High Crapflooder The Right Honourable Vlad Craig Esther McDavenpherson III
Destroyer of Mercatur.Net
Yes, we all should fight for the right to be beaten up by a giant penis.
How can you not provide a link to the actual video in question? I wasted 5 minutes digging this up....
...is did the submitter get his $100 back from that woman?
...because the text "below the fold" (in newspaper-speak) was by far the most interesting part of the summary.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
Man i wish this would have gone to court, it would have quality entertainment. I know it's inaccurate, but from the headline i get a mental image of a man indignantly arguing in front of a judge that they had copyrighted the act of attacking their wife with penises, and it's just too funny to me.
Good for Graef that he realized he was using the wrong tool to fight against what was happening to his wife. However, let's not forget that he has a right to be upset. I wonder if the people who made this video will also show they can be mature and take it down willingly? Somehow, I doubt it.
Believe it or not, there is such a thing as taking a joke too far. There's "edgy" and then there's hackneyed and juvenille. The subject of this video stikes me as high school level male "group think".
A goal is a dream with a deadline
It was a nice piece of paper pushed by the MPAA and RIAA during the 90s when people were really uneducated and saw that people were "sharing music without paying the artists." the courts could stop file sharing software because the people judgign and serving in jury's didn't have any knowledge on it, it was something that their kids did.
Now everyone knows that isn't the case anymore. People are more educated than back then, and they know of the RIAAs dirty deeds (uploading fake files, suing 10 year olds, using the same file sharing programs to find people) and they know what a Napster, torrent, itunes, and a Shareaza is. The DMCA stands, now, as a loose piece of paper with no sway either way and only serves to hamper the courts with lawsuits and injunctions that have swayed in the favor of the file sharing applications.
This article does state YouTube, but going through the DCMA, especially since it's been pretty much the losing tool of copyright holders, is almost useless if you have copyrighted content you didn't authorize posted on a website. I hope the guy mentioned relaized that just because you pick an icon in a virtual world doesn't mean you own it. It's up to the peoepl that own and operate second life to make the call.
I think we're entering a world where you can't pass off half-baked and ill conceived properties and expect to make hand over fist gobs of cash because you control every outlet of that property. The world is too small and too fast: release a CD, and the individual files are ready to be shared on the old P2P networks, the whole album is being ripped and uploaded to people across the world (albeit not instantly like some RIAA people would want you to think), and someone just bought it and ripped it to their iPod.
But I'm getting off topic. DMCA is a nostalgic piece of law that should be revoked in favor of newer wordings that either exclude actaul programs that could be used for piracy, or it needs to go afetr the individuals that misuses these programs. But in orde rto do that, the issue of "fair use" needs to be defined for music, video, and words. As long as the fiar use is determined by the studios and labels and is controleld based on their whims they can't expect to get fair treatment in the courts. Either have fair use defined and procecute people based on that, or don't define fair use and confuse peoepl on whether they actually own what they bought.
In Soviet Russia, dots slash you!
This is going to be a permanent problem as long as this law is on the books. Here in the US we dont repeal bad laws. We keep passing more thinking it will work this time. Anyway with all the stupid laws we have on the books, just try not to piss anyone off, police, lawyers, the rich, and prosecutors especially, and you'll be ok.
Libertarian Leaning Political Discussion Forum.
"Are RICO Abuses a Temporary or Permanent Problem?"
If you can answer that one, you have your DMCA answer
If you sue all your dates afterwards. What, didn't she put out?
Considering the human history, anything you can possibly think of that involves penises and your wife must surely be considered prior art.
By now I think the Attorney General's comments on Habeus Corpus have been widely read, and remember, this guy was a member of the Texas Supreme Court. Here is another example of the lawyers and judges basically saying that the basic meaning of a phrase does not mean anything. The real problem in these cases and so many like them is that we have allowed our legal profession to become filled with addle-brained sophists who can make the word "is" mean "very well might be in theory" instead of what everyone knows it means.
The more I have looked at the DMCA, the less evil it strikes me. The real evil is how it is applied, which is why it needs to be revisited. It probably just needs clarification.
Unless you are in law enforcement the Judge can't say what you did is entrapment even if it was. A private citizen is allowed to both obtain information illegally that will help a case or entrap another party to build their case. I think the judge might have tossed the case because you are not a lawyer, judges do that too.
You caused your own grief here on so many levels.
1) "Inviting" and "meeting up for" are two different things. If you invite someone you should be expected to pay. Just because she "forgot her checkbook" is beside the point; she was rationalizing. I'm surprised you didn't just whip out a loan for her to sign and have a lawyer, witness, and notary on speed-dial. If you're too much of a tightwad, don't invite girls to $100 charity lunches.
2) Don't lend people money if you want to see it back.
3) If anyone here has been slighted pal, its her.
The legal machinery in this country will always expand upon any new law to the point of lunacy.
Currently the DCMA is being used as a way to stifle competition rather than its original intent of keeping content "safe", as well as other abuses. It's not different than how the Patriot Act is being used to bust drug dealers rather than combat terrorism.
As soon as the law sees a new tool, it will use it to the maximum. When you give them a hammer and tell them it's to pound nails, don't be surprised when they use it as a door opener.
For a really spooky read, do some Google work for forfeiture abuses. Here's a good place to start.
Weaselmancer
rediculous.
There's little, if anything, that the DMCA has done that is truly beneficial; aside from line the pockets of media cartels. This is a waste of legal resources.
Collaborative writing: www.unendurablylonely.com/blog
is that this is not a "good law". Good laws are carefully worded and carefully considered, so that even if you are trying to bend their meaning and abuse them, you cannot, because they are wored in such a way that they cannot possibly incriminate someome that does not break the spirit the law was written in.
Nowadays however, very few new laws are what I would call "good". They are wored loosely and are open to wide interpretation. The justification is usually that they don't want to create a loophole where a criminal could get away, and that surely no good law enforcement officer would abuse this power.
But we all know, if there is an opportunity for abuse, it will happen. Not some of the time, not most of the time, but each and every time. It's not a risk, it's a promise.
Good Laws are written such that a few guilty go free so that there is no risk that the innocent suffer. The DMCA is not a Good Law, it chooses to error on the side of incrimination.
I work for the Department of Redundancy Department.
Sadly, abuse of the system _is_ a part of the legal system, though no one official will admit that. As long as there are no real penalties for bringing bogus DMCA claims and no real penalties for ISPs to honor them, the abuse will continue because the claimants will get what they want. Unfortunately all laws have this feature, you can claim/sue for whatever you want. Until a court rules on the issue, it's generally all fair game. And there are plenty of lawyers, and others, who will take advantage of this legal lag time to get what they want. I suspect that only the penalty of death would put a full stop to this since fines are generally laughed off by large corporations and considered the cost of doing business.
To the making of books there is no end, so let's get started
This is what ultimately feeds the legal industry.
To put it in a more Slashdot fashion, "Laws are digital, morality is analog".
A goal is a dream with a deadline
The link I'm sure everyone will want: http://www.youtube.com/watch?v=29361_XFpTc
"I realise this is not a very popular opinion but it's the truth, and there for needs to be said" -Bill Hicks
"The guy who posted the video of the penises attacking the wife's avatar could have just certified to YouTube that the material was non-infringing"
Oh, but it might be infringing, but the guy making the claim doesn't own the copyright.
This is the problem with the DMCA take down notice:
1. It can be issued to parties with no contract with the alleged infringer. e.g. Search engines, and so they have no way to contact the alleged infringer to get his side of it.
2. It contains a presumption of copyright ownership, the person making the claim only has to say he has the copyright without giving any evidence that he actually owns the copyright. So the ISP can't refute it on the grounds that the claim is bogus.
3. By default the DMCA claimant has won, the material is removed. The person posting it has no way of proving that the claimant doesn't actually own the copyright, and would have to sue to find out. So any plausible trickster wins a DMCA complaint.
They should:
1. Restrict DMCA notices to ISPs with a direct financial benefit from the infringement.
2. Require proof of copyright ownership as part of a DMCA notice.
3. Allow the ISP to challenge the proof of copyright ownership if it looks fishy without losing their ISP common carrier let out.
Is it a bad law or is the use of it being abused? There is a big difference between a law that is being applied incorrectly and a law that is just bad.
Bad example:
Say my company is a suit and tie place. And the powers that be enact a casual Friday rule. And I still show up in a suit and get in trouble. Is that because I violated the causal Friday rule (must were causal) or because the powers enforced it wrong (I didn't were causal even thought I was allowed)?
Just remember - if the world didn't suck, we would all fall off.
Well I for one am glad that the DMCA is about circumvention, not circumcision !
In Soviet Russia, our new overlords are belong to all your base.
A little basic etiquette here -- you invite her, you pay. Her "forgotten her checkbook" was just a polite way of saying "Hell, no, you cheapskate dork."
I suppose that when you live in a world of "a video of giant penises attacking his wife's avatar/character", suing your date for not paying half isn't that dysfunctional, but still...
What I'm listening to now on Pandora...
The law was intended to be abused, and the powerful groups behind it (many of whose names end in "AA") like it that way. The way it works is
1) Anyone can get anything they want taken down by invoking copyright
2) If you're fool enough to counter-notify, it's literally an invitation to be sued.
3) Even if you counter-notify, if they claim they're going to sue, they get to take it down again. Indefinitely. Even if they never actually sue. There's no real recourse here.
4) If they do sue, the takedown remains in place for the duration of the suit.
So the DMCA allows a private party to get the effect of both a temporary and a permanent restraining order without the formalities of actually making a prima facie case (let alone proving it). And because "copyright" is involved and because the DMCA doesn't actually require the information to be taken down but merely provides a major incentive (immunity from suit) to those who obey it, the First Amendment is bypassed.
The law should be found unconstitutional on its face, but the courts have pretty clearly indicated that they aren't going to do so.
So let's see. So many issues...
First off, let's address this little snippet...
"Just because X is illegal does not mean that tools or instructions for doing X should also be illegal."
So it should be completely legal to provide information on how to make a silencer for a handgun? What legal use is there for a silencer? It should be completely legal for me to be able to tell you that if you screw a woodscrew into the lead core of a Slugger shotgun shell, you now have an Armor Piercing Round that will go through body armor and plate steel? How about the legality of my telling everyone how they can build a landmine out of a tupperware bowl, gasoline, draino, a roofing nail, saran wrap and some miscellaneous debris for shrapnel? Shall I now go into detail about how to assemble those ingredients? You want to defend my rights to impart this information?
Because the DMCA *can* be abused, it is therefore something bad that should be gotten rid of? Does that mean that because you can pick up any newspaper and find cases where corner store cashiers have been found guilty of selling cigarettes or alcohol to underage individuals, that the laws for keeping underage individuals from purchasing these things should be gotten rid of? I mean, since there are people getting caught abusing the laws there must be even MORE cashiers and consumers abusing the laws... therefore by your argument the laws should be disposed of.
How about speeding? How many cops write people up for one mile an hour UNDER the limit that decides whether or not the speeder has to appear in court for the ticket (In RI for example, 15 miles an hour over the speed limit means you mandatorily have to appear in court, and the RI State Troopers are well known for giving breaks and writing up people for only going 14 miles an hour over.) There is abuse of the law. Both in the speeding, and the punishment. Should the laws regarding speeding be repealed then?
You are pointing out how since individuals abuse the laws, that they should escape punishment, and the laws themselves should be changed, rather than punish those who are abusing the laws even harder.
You are right that it was wrong that noone checked your ID when you got that girl's information and filed the paperwork against her. What did you do about it, to ensure that ID's were checked in the future? NOTHING! That makes you part of the problem, and not part of the solution.
"I love deadlines. I love the whooshing sound they make as they fly by." -D. Adams
DMCA "abuse"? The DMCA itself is an abuse of the constitution. Calling this "DMCA abuse" is like calling robbing a store and shooting the owner "robbery abuse". It goes beyond what is normally done, but either way is wrong.
This is the TV-dramatization of it http://query.nytimes.com/gst/fullpage.html?res=9C0 CE3DC1431F935A35751C1A966958260/
but it did happen.
Apparently accepting a date establishes a contract.
Incorrect.
Check section 512 yourself. (Direct link to section 512 that might work.)
There are two key parts: c.1.A.iii: The service provider "upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;". The legal content must be taken down "expeditiously." No window of opportunity is allowed in which to contact the person who posted it. Then g.2.B and C: "upon receipt of a counter notification described in paragraph [the service provider] ... replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice."
Anyone willing to tell a lie can silence your online speech for ten days.
There is no trial, not even a judge's review. Even if your ISP wanted to, they can't put the content up faster than than ten day (at least, not without losing the safe harbor provisions). That's assuming you promptly file the counter notification. You can bring charges that the third party lied, but it's hard to prove when they claim "Oops, I guess we were wrong." Ten days might not seem like much, but it might get a company past an initial news rush. A number of companies have used the ten day window to illegally silence leaks of sale prices on "Black Friday" until the day had passed.
The take down notice system is, at its core, a good idea. I've even filed take down requests. However, it is not a good balance. It amounts to suppression of speech. If you're going to supress speech, you need a much higher standard than some random person's claims. The reason you can be silenced for 10 days is to give the original claimant time to file an infringement suit against you. Why does the claimant get such a window, but the person whose speech is being suppressed doesn't? A more fair balance would be that upon receipt of notification, a sevice provider needs to make a reasonable effort to contact the poster. If the poster fails to provide counter-notice within ten days, then the content gets yanked.
Search 2010 Gen Con events
The abuse is as permanent as the the law itself. It's an abuseive law designed to be used this way, just like RICO and all IP law for that matter. These laws don't exist to provide "justice". They are there to protect the revenue stream of a particular interest. Just like small town speed traps.
What?
Maybe I'm missing something... but I seriously doubt if Vanessa Carlton and/or her publishing company, etc. gave their permission to use "A Thousand Miles" in a video of giant pink penises attacking some woman. Isn't that a copyright violation? (I can't see how that could possibly constitute "fair use.")
Also -- was that an actual picture of the woman in question, altered to show her holding a giant penis? Surely there has to be grounds for some sort of legal action there? While I agree that using the DMCA was probably a bad idea, I can't help but sympathize. I'm sure if my wife was the target of such an attack I'd be seriously upset and attempt to do just about anything I could about it.
Clams with giant DVD collections they didn't need to pay for.
No, happy clams with DVD collections twice as big as what they paid for, because the second half is made up entirely of backup copies of the first, not needing to buy new copies due to cracks working their way out from the hub or the edges separating causing playback to stop at the layer change.
And maybe a few remixes in one's own private library not for showing in a paid nand/nor public venue.
I'll add what the GP surely meant to imply: "If you buy something it should be yours to do whatever you choose with" in private.
And I'll volunteer that loaning out your backup should be fair use as much as it is with loaning out the original, so long as the two aren't in simultaneous use. Failure to return a loaned backup would be theft only on the part of the person failing to return it, and I should be entitled to make another copy to replace it in cases of theft or damage. And same should be true for loaning out a remix. If the person you loan to starts making copies, doesn't return it, or makes paid or public performances of it, that should be his crime.
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
Not reading something doesn't make you a dumbass. I didn't read it either--not because I didn't expect it to be more interesting than the "above the fold" part, but because I'm not interested enough to read it to begin with. If I were to completely read every story on every page I open today, I'd be done sometime tomorrow, already making behind for *that* day's collection of stories, and so on.
You gotta pick and choose what to spend your time on. Don't tell me *you* don't do the same.
If not completely reading a webpage makes one a dumbass, then who here isn't?
Five previews and I still missed "vengeance". Hate that...
When Anshe Chung started SL, she was a in-game prostitute (ala Escort). I still have one of her early (well 2 years ago), note cards that listed all her prices.
Not only this, she was also an escort in the AC and SWG (where such things were against the ToS). I guess with a little of money people try to pretend their past does not exist. Interesting, her Wikipedia entry had massive edits that tried to erase her working girl years (from her).
Your reply title says DCMA. Defense Contract Management Agency? :)
Ant(Dude) @ Quality Foraged Links (AQFL.net) & The Ant Farm (antfarm.ma.cx / antfarm.home.dhs.org).
DCMA = Defense Contract Management Agency. :)
Ant(Dude) @ Quality Foraged Links (AQFL.net) & The Ant Farm (antfarm.ma.cx / antfarm.home.dhs.org).
Oops. I get typing fast, I get finger dyslexia sometimes. :)
Weaselmancer
rediculous.
I wonder, with the perpetual "almost-there" view of avatar-in-the-'net as a proxy for one's likeness, when we are going to see the first glut of backlash. What I am specifically talking about here is this: if you take a picture of a person and then use that for commercial gain, I believe you have to have a release. If, however, you take a picture of a person that is in-frame with you on the street as a family snapshot, no such release is required. Now, what happens when you take an image of an avatar that is identifiably an individual (e.g. a "Niet3sche" avatar) and then use it for economic gain? I'm thinking out loud here, but I wonder where, when, and how these lines are going to be drawn.
N
It is important to understand that this is not a legally pursuasive argument and to understand why it falls short. U.S. law is not about the weight of judicial opinions. Whether one court or a thousand courts have decided an issue one way means nothing legally if a higher court interprets the law in a different way. It does not matter that this case was settled out-of-court. The Appeals Court for the Fourth Circuit issued a published opinion, an interpretation of law, which is binding on all the district courts in the Fourth Circuit. The decision even binds other panels of Fourth Circuit appellate judges.
Perhaps if the lower court's decision was very well written, then it might have some pursuasive value (at least in another circuit in which the area of law is undecided). But it is nonsensical to use this case to argue that DVD-copying programs should be protected under the First Amendment because they should receive at least as much protection as manuals on killing. All that citing to this case shows is that manuals on killing are not protected by the First Amendment in the Fourth Circuit.
Always appear with a court reporter on your arm.
That Patriot Act story happened in 2005. The Patriot Act has been revised since then, and its scope has been narrowed.
Is the "sneak & peek" method of tapping tunnels to be used by terrorists and/or drug dealers still legal, or were those methods outlawed again when the act was renewed and rewritten?
I will add that I've seen at least one public service announcement claim that drugs fund terrorists. I'm sure that anyone fighting drug smugglers with Patriot Act provisions will tell you that as well.
There is a fine line between recklessness and courage... -- Paul McCartney
Actually, society hasn't even scratched the surface, when it comes to abuse of the technology ban. I think that some day, if this law doesn't get repealed, somebody is going to get screwed over big time.
Here is the problem: circumvention is a function of the copyright holder's wishes. If the copyright holder authorizes bypassing the protection, then it is legal. If the copyright holder does not authorize, then it is illegal. So, for a given protection system, who is the copyright holder? Just about anyone, that's who.
For example, according to the law, if you bypass Apple's protection system on their iTunes Music Store songs, Apple is not the offended party. Apple has no stake in the matter at all, has no standing to sue you, etc. The music's copyright holders do. So maybe you're thinking that would be the record companies, maybe represented en masse by the RIAA. Well, yes. But that's not all. The RIAA really only represents a small fraction of music copyright holders. Most musicians publish their music without any sort of record contract at all, and are not RIAA members.
Go to your local bar that has live bands. Go on a Tuesday night, where you'll probably meet one of the least popular/successful bands, the one that either has the least "hope" of getting signed (as though getting signed were a good thing ;-) or is just getting started in making a name for themselves. (That doesn't mean they'll suck; maybe you'll actually like them. There are some damn good bar bands out there.) Do they have a CD for sale? Quite possible. Is their music for sale on iTunes Music Store? It just might; I know several unsigned bands in my town alone that do. Does the RIAA represent them, suing people on their behalf, granting or revoking authorization to decode their DRMed music on the band's behalf? No.
If that band sells a single DRMed song, then they -- not the company that sells products that work with that DRM, not the company that invented the DRM snakeoil, not some lawyer in a suit in New York -- are the ones who say whether or not you are authorized to "bypass the technological measure that limits access to the music" (which is a necessary step in playing the music).
Your local band has standing in court to say that users of Apple's iPod are not authorized to play their music on iPods, or that users of iTunes are not authorized to burn their music to a CD. That band can say Apple is selling a product that bypasses the protection on their music. They can say, "Apple, stop distributing iTunes. Apple, stop selling iPods."
And the text of this radical federal law, overriding centuries of common sense and law, will be on their side.
Now, maybe Apple's lawyers thought of this. Maybe when a band offers their music through iTMS, they sign a contract agreeing to not sue Apple over this. (But then again, maybe they don't. I haven't looked.) But this isn't about Apple specifically, this is about anyone who implements DRM. MS Windows users have complained that the media player application that comes with that OS, when it rips a CD and encodes to a compressed file, it defaults to using Microsoft's codec and file format, with DRM. That means you can get your music, which you hold the copyright for, into a format where Microsoft's player application is a DMCA violator. And there sure as hell isn't anything in the Windows EULA (even if we were to assume unsigned EULAs are
Exactly what provision does the DMCA have for policing ISPs outside of the US. Such as, for example, the one used by the Sydney Morning Herald?
You shall know him by his Sig
I've written some physics textbooks, which are free online under a copyleft license (CC-BY-SA). The copyright and licensing information are on p. 3 of the PDF file. A year or two ago, some guy downloaded the PDFs, deleted p. 3 from each one, and started selling CDs with my books on them on e-bay, saying in his e-bay listing that they were public domain. (For those of you who aren't up on your legal terminology, "public domain" means that the work is not copyrighted, which was false in this case.) The ironic thing was that if he had merely refrained from deleting p. 3 of the book, he would have been in compliance with the copyleft license, and could have legally sold the CDs on e-bay, without giving me any royalties. Of course the reason he deleted p. 3 was that he wanted to mislead his customers, so they wouldn't realize that they were paying for something they could just have downloaded for free.
With some misgivings, I filed a DMCS takedown notice against the guy. Ebay canceled the relevant auctions, but didn't take any other action against this guy's e-bay account. (His entire business consists of copyright-violating stuff, e.g., selling Lord of the Rings screensavers with screenshots from the movies, and also porn screensavers.)
I think the DMCA is a bad law, but I don't think all uses of a bad law are necessarily bad. Likewise there could be good laws that are used in bad ways. The main objection I have to the DMCA is that it erodes fair use, since people exercising legitimate fair use rights can get their content taken down, and have no real recourse.
On the other hand, people who create copylefted works depend on copyright, and copyright enforcement. In the U.S., if you write a program and GPL it, by default you are basically powerless to enforce the license. The reason is that you probably didn't register the copyright with the copyright office. The way the law works is that any work that you fix in a tangible medium is immediately, automatically copyrighted by you. However, if you don't file a copyright form and pay the fee, then your remedies against violations are limited to suing for actual damages. Well, your actual damages are almost certainly zero if it's open-source software. A lawyer is not going to take your case on a contingent fee basis if the law limits your damages to zero, so your remaining option would be to hire a lawyer out of your own pocket. Yeah, right.
So however flawed the DMCA is, and however many times it's been abused, it's also one of the only practical ways of enforcing the GPL and other copyleft licenses. (The other ways would be (1) file a copyright form and pay the fee for every GPL'd program you write, or (2) assign your copyright to some organization such as the FSF, which will then file a copyright for you.)
Find free books.
It abuses natural and artificial rights that have been excercised for centuries. It gives creators absolute legal control over work they've publicly release3d. It isn't being abused. It's made to legitimise abuse.
These posts express my own personal views, not those of my employer
i want to see video, post it! fap fap fap!
If the DMCA is going to be overturned, it won't be on the basis of the first amendment, at least not in the way it's described above. It's well established that even speech (not to mention code as speech) can be restricted as a result of its non-speech qualities; certainly you're restricted from publishing copywritten material even though that publication might otherwise be protected.
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While I agree that code is speech - and this argument seems plausible - that's only a first step; you'd then have to demonstrate that the speech is permissible.
If we're going to talk about why the DMCA should be overturned it ought to at least be a discussion based on plausible grounds. I think the crux of this article is great - this is a horribly struck balance with little safeguards in place. This is precisely what you would expect from a bill written by and for a particular industry. This is problematic in its own right, but always remember, there're two avenues to getting rid of it.
1) consumer advocacy; there needs to be consumer groups, or proxies (think electronics industry; think how much Sony electronics has been hamstrung by Sony music over the years; how about those minidiscs) to lobby for Congressional, not court action
2) Court battles. These don't all have to involve the constitution. The DMCA has a host of statutory problems. And if you're going to talk constitutional, then let's talk about what's out there. Start glancing at some law reviews on the topic or visiting the EFF's website. There are plenty of arguments out there. Let's make those arguments public, and not spurious ones that don't help us win and only give fodder to the content monopoly.
148 U. Pa. L. Rev. 673
2002 U. Ill. J.L. Tech. & Pol'y 289
http://www.eff.org/IP/DMCA/unintended_consequence
And remember, lawyers are on both sides. They're neither good nor evil. Indeed, if you're suing someone they might be helpful (as the article suggests).
THANK YOU for posting the video. I watched it. Please don't bother to watch it yourselves. It's obvious to me, this is basically an advertisement for SecondLife, with slick animation of realistic characters.
/. (yes, yet another of many) and for that, I am grateful. You see, I have asked several people to remove my copyrighted material from their website. I write a polite but firm letter.
Advertising via the legal system.
On the plus side, it has provoked a fascinating discussion on DMCA here at
But I never invoked the DMCA.
I think now, that I never will threaten with the DMCA bullystick. I was against its passing, and increasingly that seems like a good decision. (OTOH If one philosphically rejects the DMCA, one therefore should not invoke it, even for egregious examples of copyright infringement...)
I am curious how other copyright holders enforce their copyrights online, and how these efforts are met?
(Save for another day my annoyance at my Publisher for
Disallow: Google Books)