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DMCA Takedown Scandal, Part Two

Posted by kdawson on from the trying-harder dept.

pmdubs writes "Following up on our earlier discussion, Michael Freedman updates us on experience with dubious DMCA takedown notices. As a result of the publicity his initial post received, the Video Protection Alliance has dropped Nexicon, the company to which they had outsourced infringement detection. In this case, while there may be little legal recourse to issuing invalid DMCA notices, the threat of bad press seems to have reined in highly questionable practices."

28 of 153 comments (clear)

  1. Not a solution. by Anonymous Coward · · Score: 5, Insightful

    The proper way to solve these problems is to establish legal precedent, not to give them bad press. They'll just find someone else to do their dirty work now, and we're still as fucked as always in the eyes of the braindead laws.

    1. Re:Not a solution. by sakdoctor · · Score: 5, Informative

      The proper way to resolve this, is to repel the DMCA, and enshrine in law, people's right to circumvent access control when no copyright infringement takes place.

      Bye bye lexmark. Bye bye iphone/ipod crap

    2. Re:Not a solution. by siloko · · Score: 4, Insightful

      The proper way to resolve this is to make the penalty for falsely sending DMCA takedown notices equal to that of actually committing an infringement. In some cases this can amount to millions of dollars ;)

    3. Re:Not a solution. by Runaway1956 · · Score: 5, Insightful

      Gotta disagree. The Sakdoctor is on target here. Laws that infringe on the people's rights are wrong. DMCA most definitely infringes on people's rights. No court in America should ever have approved of any DMCA law, period. Making up more new laws to make DMCA work better is not the correct route. Just repeal it, and make the "rights holders" do some real work to enforce reasonable law.

      Reasonable law, by the way, would see everything copyrighted before about 1970 in the public domain - and possible some things even later than 1970.

      --
      "Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
    4. Re:Not a solution. by HangingChad · · Score: 2, Insightful

      while there may be little legal recourse to issuing invalid DMCA notices...

      You can't sue the organization issuing a bogus take-down notice? Tortious interference? Shouldn't be too tough to show actual damages, tripled in this state if it's deliberate. Or is there some incredibly high bar for damages?

      --
      That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
    5. Re:Not a solution. by Runaway1956 · · Score: 5, Informative

      Least Restrictive Means Test

      The "least restrictive means," or "less drastic means," test is a standard imposed by the courts when considering the validity of legislation that touches upon constitutional interests. If the government enacts a law that restricts a fundamental personal liberty, it must employ the least restrictive measures possible to achieve its goal. This test applies even when the government has a legitimate purpose in adopting the particular law. The Least Restrictive Means Test has been applied primarily to the regulation of speech. It can also be applied to other types of regulations, such as legislation affecting interstate commerce.

      In Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960), the U.S. Supreme Court applied the least restrictive means test to an Arkansas statute that required teachers to file annually an Affidavit listing all the organizations to which they belonged and the amount of money they had contributed to each organization in the previous five years. B. T. Shelton was one of a group of teachers who refused to file the affidavit and who as a result did not have their teaching contract renewed. Upon reviewing the statute, the Court found that the state had a legitimate interest in investigating the fitness and competence of its teachers, and that the information requested in the affidavit could help the state in that investigation. However, according to the Court, the statute went far beyond its legitimate purpose because it required information that bore no relationship to a teacher's occupational fitness. The Court also found that the information revealed by the affidavits was not kept confidential. The Court struck down the law because its "unlimited and indiscriminate sweep" went well beyond the state's legitimate interest in the qualifications of its teachers.

      Two constitutional doctrines that are closely related to the least restrictive means test are the overbreadth and vagueness doctrines. These doctrines are applied to statutes and regulations that restrict constitutional rights. The Overbreadth Doctrine requires that statutes regulating activities that are not constitutionally protected must not be written so broadly as to restrict activities that are constitutionally protected.

      The vagueness doctrine requires that statutes adequately describe the behavior being regulated. A vague statute may have a chilling effect on constitutionally protected behavior because of fear of violating the statute. Also, law enforcement personnel need clear guidelines as to what constitutes a violation of the law.

      The least restrictive means test, the overbreadth doctrine, and the vagueness doctrine all help to preserve constitutionally protected speech and behavior by requiring statutes to be clear and narrowly drawn, and to use the least restrictive means to reach the desired end.

      http://legal-dictionary.thefreedictionary.com/Least+Restrictive+Means+Test

      I really don't believe that the DMCA would pass muster if examined in light of least restrictive means. DMCA is by definition a restriction on the PEOPLE's rights.

      --
      "Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
    6. Re:Not a solution. by icannotthinkofaname · · Score: 5, Funny

      You can't polish a turd

      What? I thought the Mythbusters proved that you can polish a turd.

      --
      Let q be a radix > 1. I am in ur base-q, killing 10 d00ds.
    7. Re:Not a solution. by sxeraverx · · Score: 2, Insightful

      Don't just repeal the DMCA. Completely reverse it. I have every moral right to make a copy of something I own for my own personal use. Any DRM that tries to make that more difficult should be outlawed.

      Hello, "DMCA2 put up notice"?

    8. Re:Not a solution. by dbIII · · Score: 3, Insightful

      Please correct me if I'm wrong, but isn't there already harsh penalties for sending out false DMCA takedown notices in the law already? Also isn't it the case that these penalties have NEVER been applied? Without any sort of check or balance it is an unjust law, and if there are theoretical checks and balances that are never applied it is still an unjust law.

    9. Re:Not a solution. by sjames · · Score: 4, Interesting

      I agree that the DMCA is wrong, but if it won't go away, then abusing it (including using it negligently) needs to carry a lot more risk than it does now.

      A good start for a copyright reform would be a rollback. Copyright of everything created to date is rolled back to expire when it would have expired under the law as it was at the time of creation. While I'm sure many would complain bitterly, they wouldn't actually have much to hang their complaints on legally or philosophically. They will have exactly the boon that was to encourage the creation of the work in the first place. Their only "loss" would be the ill gotten gains from bribed lawmakers.

      The rest can come from there.

    10. Re:Not a solution. by Anpheus · · Score: 2, Insightful

      Careful, DMCA also provides for safe harbor provisions. If we strike down the DMCA completely without replacing it, you can kiss Youtube, Slashdot, and every other user-contribution based site goodbye.

      I could post the first ten pages of a book on Slashdot and they would be legally liable.

    11. Re:Not a solution. by belmolis · · Score: 2, Interesting

      Exactly. Current copyright durations are far too long and the extensions clearly do not serve the purpose of encouraging publication.

    12. Re:Not a solution. by mcgrew · · Score: 3, Insightful

      You're in favor of a forty year copyright term? IMO that's far too long. Anything before 1989 should be in the public domain. The original US copyright term was 14 years.

      And I'd like to see a DMCA that states that DRM itself is illegal, as it prevents fair use as well as the work never being able to enter the public domain. If you add DRM your work would automatically enter the public domain, and if someone breaks that DRM (DRM can never really work anyway) you're fuX0red.

      --
      Free Martian Whores!
  2. Reigned vs. reined ... by Anonymous Coward · · Score: 5, Informative

    These highly questionable practices have reigned for a long time, but in this case may have been reined in...

    Your english teacher.

    1. Re:Reigned vs. reined ... by sxeraverx · · Score: 3, Funny

      You, sir, rain supreme.

  3. Oh kdawson by Anonymous Coward · · Score: 5, Funny

    Troll me harder kdawson. HARDER, troll me harder!
    I need it so bad.

  4. CmdrTaco's pants takedown scandal, part two by Anonymous Coward · · Score: 5, Funny

    CmdrTaco's pants were taken yet down again, due to a DMCA request.

  5. Repeal the law... by Darkness404 · · Score: 5, Insightful

    Ok, now that we've had over a decade with the DMCA, haven't lawmakers seen that it doesn't work and ends up being a pain to the purchaser more than the pirate? Since the DMCA, how many fewer movies have been pirated? My guess is none. What about music? Nope. However, how many purchasers of content really wanted to strip out DRM and other nonsense from the things they bought but can't legally? My guess is just about everyone who has purchased DRM-ed content and wants to use it in some way.

    The internet is overwhelmingly against the DMCA, why keep it?

    --
    Taxation is legalized theft, no more, no less.
    1. Re:Repeal the law... by Anonymous Coward · · Score: 2, Insightful

      Because most people on the Internet are just normal citizens and not executives or lobbyists of major corporations, and thus under the current American system of government have absolutely no say?

    2. Re:Repeal the law... by Jah-Wren+Ryel · · Score: 3, Insightful

      Ok, now that we've had over a decade with the DMCA, haven't lawmakers seen that it doesn't work and ends up being a pain to the purchaser more than the pirate?

      Yeah, and then they will disband the TSA too!

      --
      When information is power, privacy is freedom.
  6. The takedown notice system isn't inherently bad by JoshuaZ · · Score: 5, Insightful

    The DMCA take down system isn't inherently bad. It protects ISPs and various hosts from what would otherwise be severe liability. Wikipedia and Youtube would never be able to function if they didn't have the liability protection they get from the system as long as they comply promptly with reasonable requests. The system does need some reform but reform is not abolition.

    1. Re:The takedown notice system isn't inherently bad by MindlessAutomata · · Score: 3, Insightful

      The only reason there's any positive at all to the DMCA is because of the ridiculous copyright system already in place.

    2. Re:The takedown notice system isn't inherently bad by BikeHelmet · · Score: 3, Informative

      Right now very few DMCA takedown notices are legit. I can't remember the exact numbers, but it was appalling. Something like 20-40% would be lawful if taken to court. The rest are just to get something a company doesn't like taken off the web. It's rather like sending thugs to a business to ruff up the owner and get him to comply.

      Good use of our legal system.

  7. Re:The problem with DCMA takedown notices by Dachannien · · Score: 5, Funny

    Young man
    Got your acronym wrong
    I said, young man
    Got it wrong all night long
    I will teach you
    What the letters should be
    So don't spell it dys-lex-ic-ally

    You're s'posed to call it the D-M-C-A
    You're s'posed to call it the D-M-C-A
    You can take my advice
    Use this mnemonic device
    And this chorus, you sing it twiiiiice

    You're s'posed to call it the D-M-C-A
    OMFG it's the D-M-C-A
    You got those letters reversed
    Thank god there's no second verse
    My karma's going from bad to wooooorse

  8. Penalty of Perjury by Cbs228 · · Score: 4, Informative

    Under Section 512 of the DMCA, all requests must include

    A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (17 U.S.C. 512(c)(3))

    The offenders can be prosecuted for sending false DMCA notices, since they made statements "under penalty of perjury." All it would take is for one judge to get annoyed and throw the rulebook at these people. Unfortunately, perjury is a criminal offense—not a civil one—so it is unlikely anyone could file suit to force the issue.

    --
    At our school, we don't earn a degree when we graduate—we earn pi/180 radians
    1. Re:Penalty of Perjury by dshadowwolf · · Score: 2, Interesting

      And there is no need for any other coverage, really. If you send out a DMCA takedown and do not hold copyright to the material you are demanding be taken down - and have not been authorized to "act on behalf of the copyright holder" - then by having filed the DMCA takedown notice you have perjured yourself.

      It's not hard to understand - this does mean, however, that every bad DMCA Takedown is prosecutable under extremely well-known law.

  9. Little recourse?! by ReallyEvilCanine · · Score: 4, Informative

    Filing a false notice is a fucking FELONY (17 USC 512). Call the police and press charges.

    1. Re:Little recourse?! by Anonymous Coward · · Score: 2, Insightful

      > Filing a false notice is a fucking FELONY (17 USC 512)

      No it isn't.

      Someone who knowingly makes misrepresentations is liable for damages and attorney's fees (section f), which is a civil matter. But that doesn't apply if you're merely careless.

      Falsely claiming to be acting on behalf of the specified copyright holder is perjury, but that isn't the case with the notices which the article was discussing.

      > Call the police and press charges.

      OTOH, calling the police may well be a criminal offence (filing a false report).