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DMCA Hurts Copyright Holders, Too 47

Posted by timothy
from the slipping-through-fingers dept.
adam613 writes: "Further proof that the DMCA is designed to protect corporations rather than copyright holders: ZDNet is reporting that an author who published e-books that an AOL user posted on Usenet can not hold AOL legally responsible. While AOL is an ISP and ISPs can not feasibly censor their users, AOL is also a content provider, just like Napster. In the end, the copyright holder who the DMCA is supposed to protect got screwed. Things could start to get interesting here...any lawyers ready to make judges start scratching their heads?"
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DMCA Hurts Copyright Holders, Too

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  • If this doesn't prove that the DMCA should be repealed, I don't know what will.

    I'll be interesting to find out what happens now. Alot of the big corporations pushed for this a while back...some of em will still want it in place.

    If it remains, we know for a fact that the DOJ has been bought and paid for.

    If it is repealed, I fear it is only the beginning of the fight, because, in this case there WILL be a DMCA2.
    • by Rick the Red (307103) <Rick.The.Red@BLUEgmail.com minus berry> on Wednesday March 20, 2002 @02:23PM (#3195181) Journal
      I don't understand your reasoning. You say this ruling is good because "If this doesn't prove that the DMCA should be repealed, I don't know what will." I disagree. What this proves is that the DMCA works as designed: AOL was protected, and the individual (in this case Harlan Ellison) got screwed.

      This case might make industry think twice about the DMCA if the copyright work in question were owned by, say, Bertelsmann [bertelsmann.com] or another AOL-Time-Warner [aoltimewarner.com] competitor. But as the suit was brought by some puny individual (no offense, Mr. Ellison [harlanellison.com], but you're not a mega-media conglomerate) and the Right [riaa.org] Side [mpaa.org] won, this won't change the opinions of Anyone [house.gov] That [ftc.gov] Matters [senate.gov].

    • If this doesn't prove that the DMCA should be repealed, I don't know what will.

      So you're saying that AOL should be held responsible for copyright infringements made by its users?

      • No, the point is that in this case it doesn't do it's job (or can't). ISPs shouldn't be held responsible for anything their users do, but in this case it's proof that anyone who has a legit claim is not helped by the law. It is more proof that the DMCA will not and should not stand a true "test" in a court of law.

        Let me clairify...I think copyright holders should be able to protect their rights, I just think there should not be an exception for digital material.
  • Just because its the little guy we can turn around and say that everyone has to be liable because his work got out. In this case AOL was simply providing a medium, and are no more reponcible than any other ISP should be.
    God I wish I can gotten more sleep so I could have made this argument intelligently.
    • by Fat Casper (260409) on Wednesday March 20, 2002 @08:40PM (#3197470) Homepage
      AOL is just as "responcible" for the content that its users make publicly available as the old Napster was. When the company is a little guy, it gets crucified. When the company is AOL-TW, the same logic used to reach an anti-Napster verdict gets thrown out the window. This case highlights the intellectual dishonesty in both the DMCA and its enforcement. It is not about protecting copyright holders, as the enforcers claim. If the reasoning in this case were applied to the Napster case, then Napster would be back to the way it used to be.

      • Yes, but the DMCA gives ISP's no libility if they remove the content upon notification. Napster didn't, I assume AOL did (though you can't truly remove anything from the web once its already there, especially from usenet, but thats another story)
        • Except Napster wan't even hosting anything. There was nothing for them to 'take down' since there was nothing 'put up' in the first place. They were essentially a search engine.

          From the article, AOL "lobbied for exemptions that would prevent them from having to spend all their time policing their networks". But then they turn around and say, "Napster must not allow the media to be listed in the first place." Why does Napster have to act first while AOL need only react to alleged copyright violations? The difference sounds small but it's basically saying that the big guys can do anything that is not forbidden, but the little ones can only do what is explicitly permitted.

      • Not *quite*. This has already been hashed to death, but you probably weren't listening. Napster advertised the fact that they were in the buisness of trading copyrighted material for free. That's what got them in trouble. AOL is a general purpose transport, like your phone or the mail. If someone were to set up a system for phoning free music to you and that's all it did and they advertised that, then they would go down while ma bell stayed up. The term "Primary and overriding purpose" is the phrase on which such laws turn.
  • by outlier (64928) on Wednesday March 20, 2002 @01:32PM (#3194819)
    Just because AOL is a content provider, doesn't mean they shouldn't be protected when they act as an ISP.

    Yes, the DMCA sucks huge amounts of ass. Yes, the DMCA was designed to protect big content providers and not copyright holders. Yes, AOL is a big (evil?) corporation.

    BUT, one of the few sane aspects of the DMCA is that it doesn't hold ISPs liable if they remove infringing material. This allows ISPs to react to claims in a reasonable manner (note, that doesn't guarantee they will, it only enables them to). If ISPs could be held liable for everything their users did, how long before AOL and others began enforcing even more draconian restrictions preempting their users' behaviors...

    The DMCA sucks, is evil, etc... But this provision isn't the reason.
    • I agree. If AOL is responsible for what their users post, then BnetD [bnetd.org] is responsible for people taking their open source project and modifying it against the copyright of Blizzard [blizzard.com]. I actually don't think there's too much wrong with the DMCA, but several proposed amendments to it (I forget the one that's really out of line, that requires security measures on every piece of internet software) can be fairly out of whack.
    • by Anonymous Coward
      This case was, frankly, bullshit.

      The guy sued AOL for having USENET servers that happened to have some illegal content passed through them. USENET relies on *everyone* passing on articles, or it breaks down.

      AOL *should not* be liable for this any more than the phone company should when you send pirated music over your phone line.

      I have a really hard time working up any anger at the DMCA for doing this. I'd be pissed if it didn't.
      • Of course this case is bullshit. Homegrown, freshly squeezed, ripe on the vine, bullshit, I agree. But it's no more so than any of the others that have come by, which, golly gee, always seem to end in favor of the side with deeper pockets. Can 2600 or Google actually be held responsible for what people might do with content that isn't even on their servers but happens to be linked to on their site? The courts say, "Hell yes!". Can AOL/TW actually be held responsible for what people might do with content that isn't even on their servers but happens to be linked to on their site? The courts say, "Well, of course not". It's ridiculously hypocritical and we have yet to see the DMCA come down on the side of the people it's proponents claimed it would protect.
  • by Vodak (119225)
    While I do not agree with term limitations for congressional office this is what you get when you have career politicians in office unchallenged for all many years. If your congress person doesn't understand the subject he/she is voting on then get rid of him/her. All people including the readers of Slashdot need to stop voting someone into office because they believe in a single issue.
  • It seems to me from short skimming through the article that AOL acted in its ISP role here, nothing with its content-provider role. And I think it's very just that ISPs cannot be held responsible if they remove offending content after they are notified.
    • "if they remove offending content after they are notified"

      There lies the problem with this particular provision: to avoid liability, ISPs have to shut down the allegedly offending content before it is determined wether it is illegal or not. When faced with potential liability, somehow I don't think ISPs think twice before simply removing the content before hearing out what their customer has to say. The burden is then on the user to prove that the content does not infringe on any copyright.

      Sentence first, judgement later. Guilty until proven innocent, with a twist: if the "judge" (in this case, the ISP) did not immediately condemn the user who in the end did something wrong, they open themselves up to litigation. From a pure justice point of view, this sucks.
      • in reality, this is the only way it can work. But you are forgetting that the ISP can re-post the material after it recieves a sworn affidavit from the alleged infringer that he is not infringing. All this does is allow the ISP to stay out of the dog fight between two parties. To have it your way, every ISP would have to spend resources to conduct an investigation into the merits of the claims. And what if they are wrong? They get sued. Then how many ISP's would go to thr trouble. This is a working situation.
        • No, the proper way, and the way it worked pre-DMCA is that the content stays up until it's proved to be infringing (or a court orders it taken down pre-trial). The ISP, assuming the correctness of the common carrier argument, has nothing to do with it at all. The ISP provisions are there so they can control content posted by people anonymously, or out of the country. It's an open argument as to whether or not this power is worth making ISPs reposonsible to content, but it's apparent which way the legislation went.
        • So, what, I'm not allowed to say anything until it has been deemed acceptable to a copyright holder somewhere? How about I say what I want, then you prove in a court, not just send a nastygram, that it is unacceptable, then and only then does the ISP have to take it down.
  • I hate DMCA as much as anybody, but protecting common carriers when one of their users infringes, is a good thing. Slashdot shouldn't ever be liable for something that its users post, especially if they delete it (like what happened with the cultist trade secret).

    • please, i know this is widely offtopic:

      but what is this "cultist trade secret" incident?

      I'm intrigued....
      • by PD (9577)
        I think it was a posting of Scientology's OT-III. Apparently they were afraid that too many people would find out that it's just a really bad science fiction story.
        • They will only mod to -1. Here it is from the proverbial horse's mouth -- when I wrote in about a threatening post which included a guy's home address, this is all that Taco wrote back:


          From: "Rob \"CmdrTaco\" Malda"
          Date: Mon Oct 08, 2001 08:18:20 US/Central
          To: Paul `Order in Chaos` Cantrell
          Subject: Re: Abusive and possibly dangerous post

          We don't remove comments. It sucks, but people did this to my girlfriend for
          awhile too. She had to get an answering machine and screen her calls.


          And it's a reasonable policy if they stick to it -- they won't touch comments, they're not responsible, and there's no liability. They just modded the abusive post down (I presume it was the editors) to -1 ("offtopic", interestingly, and not "troll").

          Can you confirm that Slashdot really broke their own policy for the Scientologists? Or is this just hearsay?
          • Can you confirm that Slashdot really broke their own policy for the Scientologists?

            It actually happened. As far as I know, it is The One And Only time that a comment has actually been deleted. There was a whole story dedicated to Slashdot's handling of that one single comment; it was a historic occasion.

    • protecting common carriers when one of their users infringes, is a good thing

      And most everyone will agree with you. The carrier should be no more held accountable for my actions while using their services than a random bystander. The problem demonstrated here is the double standard the courts have been displaying; AOL as an carrier is immune from prosectution, but Google, 2600, Napster, and even Slashdot as carriers are not. Why?

  • so microsoft posts some windows 3.1 code as an AC, then sues slashdot out of existance. Is that what we want?
  • ISPs have almost always been protected from contributory copyright infringement suits. Even before this one aspect of the DMCA gave a "safe harbor" to ISPs, some courts looked like they would do the same thing (e.g. the Netcom case).

    This provision of the DMCA is good because it protects the people who provide the pipes from copyright suits. Other provisions of the DMCA such as the anti-circumvention provisions (see the DeCSS case) and overbearing notice-and-take-down rules (closely related to the ISP safe harbor) are what people should worry about, not the whole DMCA.
  • by Anonymous Coward
    Why should this guy benefit from a law that he didn't pay for?

    If he wanted laws to protect him, he should have purchased a congressman, just as our friends at Disney, AOLTW, etc did.

    Benefiting from laws you didn't pay for is STEALING!
  • Further proof that the DMCA is designed to protect corporations rather than copyright holders

    Huh? Aren't most copyrights held by corporations?

    • Regardless of whether they do or not, the problem is that corporate copyright holders win nearly every time but an individual copyright holder will lose. The 2600/DeCSS case is similar to this in so very many ways (being held responsible for linking to content on other people's servers), yet AOL got the case against them thrown out before it got off the ground.
  • So a user posted some copyrighted material and the ISP refused to remove it at the request of the copyright holder, and youre ready to scream bloody murder over it. Am I still reading Slashdot? Last time I was here, everyone was getting their wads in a bunch over ISPs taking down users content at the request of copyright holders.

    FUCKING HYPOCRITES.
    • The hypocrites are not the /.ers but the courts. MPAA sues 2600 for linking to naughty content and wins. Ellison sues AOL/TW for not only linking to but actually hosting naughty content and the case gets dismissed. The whole ISP non-liability thing has a horrible double standard here.
  • by russotto (537200)
    AOL wasn't granted dismissal based on 17 USC 512(c), which is the part with all the notification and counternotification. That's the nasty private-gag-order provision of the DMCA which many (including myself) object to.

    Rather, they were also claiming protection under 17 USC 512(a), "transitory digital network communications", and it is on that provision they obtained summary judgement. This doesn't include ANY takedown provision, and if this decision is affirmed by higher courts, it effectively exempts Usenet providers from liability for posts not made by their own customers.

    IMO, this is a good thing, and Harlan Ellison can change his "KICK" campaign to "KICK ME". Note that he's also suing AOL for merely developing Gnutella!
  • Many of you are forgetting the MOST important factor here. This is Harlan Ellison they are trying to screw out of money. He believes in getting paid for everything he writes, no matter how minor or trivial. Perhaps a small historical anectdote may put this in better presepective.

    Once, a long time ago, a publisher ran late in paying Mr. Ellison his royalties. Mr. Ellison was forced to write a dunning letter to the publisher for non-payment. This of course angered Harlan even more because he was forced to write without pay. He eventually got paid the arrears but he didn't give up. Instead, he sold the rights to the dunning letter to one of those publishers that sold books of model business letters (think pre-computer Word Templates).

    Now, some company has tried to screw him out of money for his writings. Do not make the mistake of underestimating his willingness to go all out until he has gotten every last penny Harlan thinks is owed. Mere judges won't prevent him from finding out a way.

    AOL has no idea just how small a victory they won. I pity them.

  • First, on Slashdot, I'd have presumed that a regular poster would understand the difference between Napster and Usenet... if not, perhaps this one difference alone will clarify some things. Napster allows peer to peer access to people's machines to share files, while Usenet, for it's functioning, allows 100 million users (or more) worldwide, to post to over 15,000 servers in a variety of "newsgroups" ranging from 1 to 86,000 carried per server. Every server that carries a group generally replicates (or is supposed to) all posts being posted to that group regardless of point of origin (with variances due to installed spam filters, etc).

    Because of that, it makes it impossible for Usenet to be policed by online service providers for either copyrighted or illegal content - and even in the event of copyrighted content, a number of copyrighted posts are in Usenet because the owners want them there. The sheer size of Usenet and the inability to distinguish between legitimate posts and intellectual property theft is thus an impossible task.

    The DMCA TITLE II in this matter DOES indeed protect both the OSP (including ISP, which is a subset of OSP) AND the copyright holder. The OSP is required to take down the material after sufficient notification has been given (within a reasonable time period), while the copyright holder can sue the original poster for damages.

    The copyright owner CAN sue the OSP for contributory damges - IF - the OSP does not honor the (if valid) takedown request.

    Seems perfectly reasonable to me. With millions of posts a day, in 80,000+ groups coming from 15,000+ servers, I dont see any other reasonable method, so in this aspect at least, I think the DMCA is adequate to the task.

    So, how is the copyright holder getting screwed by this? Because AOL-TW is a big bad company that should be sued without valid reason? I dont think so. Find valid reasons to slam AOL - dont try to rewrite good sections of the law just so you can use it against them.

    Oh, but wait! How can the poor copyright owner catch the original poster? Gee, that's an easy one, but most people dont understand enough about the Internet to know that yet... here's some enlightenment (and now Verizon will hate me even more - though not as much as most of the world hates them I am sure)... It's called a circuit trace. Not a traceroute... All you need to know is what IP address the post originated from, and what time, contact the ISP, have them contact their NOC or Verizon to pull the telephone company circuit logs that they will pretend they know nothing about. Those logs are of the Telephone switching network activity that maps the "digital" data for Internet communication (and related TCPIP traffic) over the telco network to a physical telco circuit mounted to the person's house or apartment. When I worked for AOL's backbone provider (they dont own their network - nor does MSN - the same big company does), we'd acquire physical addresses of serious abusers in about 5 minutes through this method - but then again, the company I worked for had more dialup numbers than the next 5 ISP's combined - so Verizon was more than happy to work with them.

    If it's a cable modem, the cable companies maintain similar logs which allow similar traces.

    In some cases, if the poster is attempting to hide their address (spoofing, etc) that is a little more difficult, but since the telco has to know where to send the packets regardless of the IP address spoofing, they still have logs of where everything came from. Even though they claim otherwise.

    If it's non-US, then yes, the copyright holder is SOL... but that's still not a reason to take it out on AOL.

    Robert

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