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Censorship Your Rights Online

Dealing With a Copyright Takedown Request? 547

Posted by kdawson
from the define-fair-use-and-give-two-examples dept.
George Maschke writes "I recently received a takedown notice from a corporate lawyer demanding that I remove a post on my Web site's message board. It purportedly lists the first 75 of 567 questions on the MMPI-2 paper-and-pencil psychological test. It seems to me that such posting of a limited amount copyrighted material for discussion purposes on a public-interest, non-profit Web site falls within the scope of the fair use exemption of US copyright law. I have thus declined to remove the post. I believe that the corporation in question is seeking to chill public discussion of its test, which applicants for employment with many governmental agencies are required to complete. I would be interested in this community's thoughts on the matter."
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Dealing With a Copyright Takedown Request?

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  • Nothing to see here (Score:2, Informative)

    by Anonymous Coward on Tuesday March 24, 2009 @12:05AM (#27307781)

    This post is temporarily unavailable due to a DMCA takedown notice received by our web hosting company's bandwidth provider. We have sent our service provider a counter-notice and plan to have the original content of this post back up no later than 6 April 2009.

    Ah, looking forward to the /. dupe.

  • Don't be an idiot (Score:5, Informative)

    by Amazing Quantum Man (458715) on Tuesday March 24, 2009 @12:08AM (#27307803) Homepage

    Ask a lawyer, not Slashdot.

  • by MightyMartian (840721) on Tuesday March 24, 2009 @12:09AM (#27307813) Journal

    That's a lovely sentiment, but sometimes simply saying "Fuck off" won't do it. Remember, a company either has a legal team or lawyers on retainer, and for them the expense of taking this some distance is minimal as compared to the poor SOB whose getting the take-down notice. It's going to cost money, at least a grand or two, to even get a letter, but a letter from another attorney laying out his fair-use rights and the risks of abusing the take-down notice clause is probably all it will take.

  • chillingeffects.org (Score:5, Informative)

    by Anonymous Coward on Tuesday March 24, 2009 @12:10AM (#27307823)

    Go immediately to http://www.chillingeffects.org/

  • Get a lawyer (Score:5, Informative)

    by Selanit (192811) on Tuesday March 24, 2009 @12:11AM (#27307837)

    You've already received a formal takedown notice from a genuine lawyer; you need to consult a lawyer of your own. ASAP. The Slashdot community's thoughts may well be interesting/insightful/flamebait/overrated, but they're no substitute for trained legal counsel.

    Look up your local bar and see if you can find an IP lawyer with reasonable rates for a consultation. Failing that, contact the Electronic Frontier Foundation; perhaps they can help, or at least point you in the right direction.

  • by mcrbids (148650) on Tuesday March 24, 2009 @12:16AM (#27307873) Journal

    Your choice is pretty simple:

    1) Take it down, or

    2) Deal with their lawyers.

    Since you are asking Slashdot, you don't have a lawyer, or you wouldn't need the reams of idiocy you'll find as a response**. They didn't mention the DMCA, which would at least allow you to defer the problem to the original poster. (who could ask to have it put back up after you notify them)

    You got nothing. So, take it down, and resist the urge to post it to wikileaks while enjoying a $0.75 cup of coffee at a local coffee shop with Wifi because that might be considered (ahem) copyright infringement... how long you resist that urge is up to you.

    Some fights are worth fighting. It's rarely worth fighting a fight you have no resources to win. Pearson is a big, big, big uber-ultra teh evil mega-corporation, but this is unlikely to be controversial enough to benefit from the Streissand Effect.

    You have much better things to worry about.

    ** Feel free to consider this post idiotic

  • by Anonymous Coward on Tuesday March 24, 2009 @12:25AM (#27307927)

    The reason you need a lawyer is there is no bright line test for fair use, and you're getting a lot of bad advice from the people who start with IANAL. Fair use is decided on four main factors, and the law is all over the place (and judge dependent).

    "there are no absolute rules as to how much of a copyrighted work may be copied and still be considered fair use" (Maxtone-Graham v. Burtchaell, 803 F.2d at 1263).

    Check out Stanford's fair use examples page to get an idea of what you're looking at:

    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html

    The Betamax case (Sony v. Universal) allowed copying of the entire copyrighted work under fair use, while Harper & Row denied fair use for using 300 words of Gerald Ford's 200,000 word manuscript.

    You need to talk to a lawyer, not the crowd on /. Don't listen to anyone who says 300 words are ok, non-commercial use is ok, etc. Those are all factors, but not definitive.

  • Re:Advice (Score:4, Informative)

    by rackserverdeals (1503561) on Tuesday March 24, 2009 @12:50AM (#27308103) Homepage Journal

    Fair use is an affirmative defense, you can't just claim it as a right but have to prove your use was "fair" in court.

    As a site owner, I believe he is protected by the safe harbor provisions; the takedown notice likely identifies the forum poster as in violation and not the site. So he can just pass along the take down notice to the poster and let him deal with it. But to retain safe harbor protections he will have to take the message down until there is a resolution.

    A good site to visit is eff.org [eff.org]. I believe you can forward the take down notice to them and they will either take on the case or forward it to a lawyer that might help for a fee. Or maybe that's just for cease and desist orders? Anyway, the site is a good place to start looking for information.

    I'm not a lawyer.

  • by Quothz (683368) on Tuesday March 24, 2009 @12:56AM (#27308135) Journal
    MMPI 2 TEST QUESTIONS IN ORDER

    TRUE OR FALSE (567 QUESTIONS)

    1.I like mechanics magazines

    2.I have a good appetite

    3.I wake up fresh & rested most mornings

    4.I think I would like the work of a librarian

    5.I am easily awakened by noise

    6.I like to read newspaper articles on crime

    7.My hands and feet are usually warm enough

    8.My daily life is full of things that keep me interested

    9.I am about as able to work as I ever was

    10.There seems to be a lump in my throat much of the time

    11.A person should try to understand his dreams and be guided by or take warning from them

    12.I enjoy detective or mystery stories

    13.I work under a great deal of tension

    14.I have diarrhea once a month or more

    15.Once in a while I think of things too bad to talk about

    16.I am sure I get a raw deal from life

    17.My father was a good man

    18.I am very seldom troubled by constipation

    19.When I take a new, I like to be tipped off on whom should be gotten next to

    20.My sex life is satisfactory

    21.At times I have very much wanted to leave home

    22.At times I have fits of laughing & crying that I cannot control

    23.I am troubled by attacks of nausea and vomiting

    24.No one seems to understand me

    25.I would like to be a singer

    26.I feel that it is certainly best to keep my mouth shut when Iâ(TM)m in trouble

    27.Evil spirits possess me at times

    28.When someone does me a wrong I feel I should pay him back if I can, just for the principle of the thing.

    29.I am bothered by acid stomach several times a week

    30.At times I feel like swearing

    31.I have nightmares every few nights

    32.I find it hard to keep my mind on a task or job

    33.I have had very peculiar and strange experiences

    34.I have a cough most of the time

    35.If people had not had it in for me I would have been much more successful

    36.I seldom worry about my heath

    37.I have never been in trouble because of my sex behavior

    38.During one period when I was a youngster I engaged in petty thievery

    39.At times I feel like smashing things

    40.Most any time I would rather sit and daydream than to do anything else

    41.I have had periods of days, weeks, or months when I couldnâ(TM)t take care of things because I couldnâ(TM)t âoeget goingâ

    42.My family does not like the work I have chosen ( or the work I intend to choose for my life work)

    43.My sleep is fitful and disturbed

    44.Much of the time my head seems to hurt all over

    45.I do not always tell the truth

    46.My judgment is better than it ever was

    47.Once a week or oftener I feel suddenly hot all over without apparent cause

    48.When I am with people I am bothered by hearing very queer things

    49.It would be better if almost all laws were thrown away

    50.My soul sometimes leaves my body

    51.I am in just as good physical health as most of my friends

    52.I prefer to pass by school friends, or people I know but have not seen for a long time, unless they speak to me first

    53.A minister can cure disease by praying and putting his hand on your head

    54.I am liked by most people who know me

    55.I am almost never bothered by pains over the heart or in my chest

    56.As a youngster I was suspended from school one or more times for cutting up

    57.I am a good mixer

    58.Everything is turning out just like the prophets of the Bible said it would

    59.I have often had to take orders from someone who did not know as much as I did

    60.I do not read every editorial in the newspaper everyday

    61.I have not lived the right kind of life

    62.Parts of my body often have feeling like burning, tingling, crawling, or like âoegoing to sleepâ

    63.I have had no difficulty in starting or holding my bowel movement

    64.I sometimes keep

  • Submitting a DMCA counter notice [chillingeffects.org] is a good first step, provided of course you'll willing to fight the good fight if they continue to protest.

    Funny thing is, a lot of organizations actually back down upon receiving an intelligently written counter notice. Apparently, even attorneys hesitate to deal with folks who might actually make them look silly.
  • text (Score:5, Informative)

    by Anonymous Coward on Tuesday March 24, 2009 @01:04AM (#27308179)

    MMPI 2 TEST QUESTIONS IN ORDER
    TRUE OR FALSE (567 QUESTIONS)

    1.I like mechanics magazines
    2.I have a good appetite
    3.I wake up fresh & rested most mornings
    4.I think I would like the work of a librarian
    5.I am easily awakened by noise
    6.I like to read newspaper articles on crime
    7.My hands and feet are usually warm enough
    8.My daily life is full of things that keep me interested
    9.I am about as able to work as I ever was
    10.There seems to be a lump in my throat much of the time
    11.A person should try to understand his dreams and be guided by or take warning from them
    12.I enjoy detective or mystery stories
    13.I work under a great deal of tension
    14.I have diarrhea once a month or more
    15.Once in a while I think of things too bad to talk about
    16.I am sure I get a raw deal from life
    17.My father was a good man
    18.I am very seldom troubled by constipation
    19.When I take a new, I like to be tipped off on whom should be gotten next to
    20.My sex life is satisfactory
    21.At times I have very much wanted to leave home
    22.At times I have fits of laughing & crying that I cannot control
    23.I am troubled by attacks of nausea and vomiting
    24.No one seems to understand me
    25.I would like to be a singer
    26.I feel that it is certainly best to keep my mouth shut when Iâ(TM)m in trouble
    27.Evil spirits possess me at times
    28.When someone does me a wrong I feel I should pay him back if I can, just for the principle of the thing.
    29.I am bothered by acid stomach several times a week
    30.At times I feel like swearing
    31.I have nightmares every few nights
    32.I find it hard to keep my mind on a task or job
    33.I have had very peculiar and strange experiences
    34.I have a cough most of the time
    35.If people had not had it in for me I would have been much more successful
    36.I seldom worry about my heath
    37.I have never been in trouble because of my sex behavior
    38.During one period when I was a youngster I engaged in petty thievery
    39.At times I feel like smashing things
    40.Most any time I would rather sit and daydream than to do anything else
    41.I have had periods of days, weeks, or months when I couldnâ(TM)t take care of things because I couldnâ(TM)t âoeget goingâ
    42.My family does not like the work I have chosen ( or the work I intend to choose for my life work)
    43.My sleep is fitful and disturbed
    44.Much of the time my head seems to hurt all over
    45.I do not always tell the truth
    46.My judgment is better than it ever was
    47.Once a week or oftener I feel suddenly hot all over without apparent cause
    48.When I am with people I am bothered by hearing very queer things
    49.It would be better if almost all laws were thrown away
    50.My soul sometimes leaves my body
    51.I am in just as good physical health as most of my friends
    52.I prefer to pass by school friends, or people I know but have not seen for a long time, unless they speak to me first
    53.A minister can cure disease by praying and putting his hand on your head
    54.I am liked by most people who know me
    55.I am almost never bothered by pains over the heart or in my chest
    56.As a youngster I was suspended from school one or more times for cutting up
    57.I am a good mixer
    58.Everything is turning out just like the prophets of the Bible said it would
    59.I have often had to take orders from someone who did not know as much as I did
    60.I do not read every editorial in the newspaper everyday
    61.I have not lived the right kind of life
    62.Parts of my body often have feeling like burning, tingling, crawling, or like âoegoing to sleepâ
    63.I have had no difficulty in starting or holding my bowel movement
    64.I sometimes keep on at a thing until others lose their patience with me
    65.I loved my father
    66.I see things or animals or people around me that others do not see
    67.I wish I could be as happy as others seem to be
    68.I hardly ever feel pain in the back of

  • by noidentity (188756) on Tuesday March 24, 2009 @01:18AM (#27308269)
  • by Anonymous Coward on Tuesday March 24, 2009 @01:59AM (#27308469)

    check it out - here's a site with a (supposed) list of all the questions from both versions:

    http://mmpi.baywords.com/ [baywords.com]

  • by siphbowl (1220872) on Tuesday March 24, 2009 @05:10AM (#27309201)
    No, they wouldn't - many places have similar questionnaires, although they cannot *legally* force you to answer any questions on it, and in principal aren't allowed to discriminate and it's 'entirely voluntary'. That said, leave half the questions blank, and see how far you get. These aren't disreputable companies either; on the standard employment for for an Environment Agency job, I was asked about my sexual preferences and briefly about my medical history. And most employment forms have a 'religion' section, they just add a 'rather not say'.
  • Re:text (Score:1, Informative)

    by Anonymous Coward on Tuesday March 24, 2009 @05:32AM (#27309299)

    The sad thing is that people who lie on the test (and are consistent about it) are the ones that are going to get hired.

    Consistent is the key word. :-) The MMPI type inventories take a couple of hours to complete so being consistent when faking/lying is actually very difficult. Many psychometric tests attempt pick up these inconsistencies and try to interpret them. The theory is that you should be able to detect when someone is faking or concealing mental illness. As for getting hired, the MMPI is more commonly used in psychiatric circles hence some of the rather dramatic and odd sounding questions. In human resources tests like MBTI are more common - however they really ARE easy to fake. (Myers-Briggs is so vague that IMHO you may as well use tarot cards.)

  • by jackbird (721605) on Tuesday March 24, 2009 @07:31AM (#27309821)
    Nope, the sworn statement under penalty of perjury is that the filer is an authorized agent of the entity filing the notice, not that said entity is the copyright holder or that the material is infringing. Important weasel words.
  • by Anonymous Coward on Tuesday March 24, 2009 @08:08AM (#27310059)

    A number of people received requests (to be followed by legal action) to remove US Federal Court decisions. These are decisions that have been REPORTED in the Federal Reporter (762 F.2d 1151 among others). The excuse was that they were too easy to find with Google whereas in F.2d they'd require work to find.

    EEF was not interested (so far) in taking this on, but it is outrageous that any attorney would agree to send a letter asking to remove a Federal Court decision. And so far I've had 3 of them! These aren't copyright issues - the court decisions are not copyrightable (only the markups would be) - just someone who was a defendant not wanting it online.

    The problem with the question asked here is that this is more a question of fact than anything - is 75/567 (about 13%) more than fair use allows? I am a lawyer and I don't know the answer. Certainly 90% would not be fair use. Certainly 1/567 would be fair use. The problem with non-objective standards like those in much of the law today is grey area such as this.

    762 F.2d 1151
    UNITED STATES of America, Appellee,
    v.
    Patrick MURPHY, Defendant, Appellant.
    UNITED STATES of America, Appellee,
    v.
    Kevin W. DEYO, Defendant, Appellant.
    UNITED STATES of America, Appellee,
    v.
    Steven J. QUINLIVAN, Defendant, Appellant.
    Nos. 84-1599, 84-1600 and 84-1671.
    United States Court of Appeals,
    First Circuit.

    Argued Jan. 7, 1985.
    Decided June 3, 1985.
    1
    Seth M. Kalberg, Jr., Boston, Mass., for Steven J. Quinlivan.

    2
    Robert H. Astor, Northampton, Mass., for Patrick Murphy.

    3
    Stephen R. Kaplan, Northampton, Mass., with whom William St. James, Northampton, Mass., was on brief for Kevin W. Deyo.

    4
    Henry L. Rigali, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

    5
    Before COFFIN and ALDRICH, Circuit Judges, and GIGNOUX,* Senior District Judge.

    6
    GIGNOUX, Senior District Judge.

    7
    Defendants-appellants Patrick Murphy, Kevin W. Deyo, and Steven J. Quinlivan were named in a one-count indictment charging them with knowingly and intentionally using threats of serious bodily harm to influence the testimony of a witness in an official proceeding, in violation of 18 U.S.C. Sec. 1512(a)(1). After a joint jury trial in the United States District Court for the District of Massachusetts, all three defendants were convicted. On appeal, they charge numerous errors, of which we address only the allegation that the indictment lacked the specificity required to support the convictions. We reverse.

    8
    I.

    9
    The Background

    10
    The evidence at trial, viewed in the light most favorable to the government, United States v. Mora, 598 F.2d 682, 683 (1st Cir.1979), may be summarized as follows: Richard Watson was a drug informant in state and local police investigations in Franklin County, Massachusetts, from August 1983 through March 1984. During the same period, he also became an informant for the United States Drug Enforcement Administration (DEA) in the Springfield area. Acting as a state informant, Watson introduced many people, including the appellant Murphy and Karin Dumas-Murphy1 to an undercover state police officer, Kenneth Sullivan. Acting as a federal informant, he purchased cocaine from one Haythem Dawlett on several different occasions.

    11
    On March 9, 1984, Dawlett was arrested on federal charges of distributing cocaine. On the same date, apparently as a result of Watson's participation as an informant, between 32 and 35 suspects were arrested on state narcotics charges. On March 21, 1984, Watson testified before the federal grand jury in Springfield as a government witness in the Dawlett investigation.

    12
    Appellants and Dumas-Murphy were the subject of a separate DEA investigation of dilaudid distribution in Franklin County, which was being conducted about the same time as the foregoing federal Dawlett and state narcotics investigations. They were arrested on March 9 on fed

  • Re:Don't be an idiot (Score:5, Informative)

    by TekPolitik (147802) on Tuesday March 24, 2009 @08:19AM (#27310131) Journal

    The lawyer's job is NOT to evaluate your best course of action that balances your wishes to keep the material with your wishes not to be sued. The lawyer will only do two things: (1) advise you to minimize your risks; (2) represent you if you keep the material up.

    IAAL, and this is not correct at all.

    Lawyers usually advise in terms of probabilities as a CYA technique. Strangely enough, people who consult lawyers are more likely to sue than people who don't, so lawyers spend a lot of time putting in these CYA qualifiers. The following Lawyerese to English translations may help:

    May: Yes
    Might: Probably
    Unclear: Your guess is as good as mine
    Unlikely: No
    Very unlikely: Hell no

    Topical example - lawyer advising a paying client: In the situation described in TFA, given the amount of material taken, which appears to be much more than would be necessary for any "fair use", it is very unlikely that a defence of fair use would be successful in court.

    Topical example - lawyer making a comment informally without any liability: If you think the situation in TFA amounts to fair use you're out of your ****ing mind!

    In places with a divided profession (solicitors and barristers rather than attorneys) you can get the second sort of advice on a paid basis from a barrister (or your solicitor can get it for you), although it will cost a lot more and will still have qualifiers in it indicating where the risks are.

    Even where a client insists on doing something risky, a lawyer will be prepared to give advice on steps the client can take to minimise the risk. If a lawyer refuses to do that, you should find another one.

  • Re:text (Score:3, Informative)

    by Dun Malg (230075) on Tuesday March 24, 2009 @08:58AM (#27310469) Homepage

    The sad thing is that people who lie on the test (and are consistent about it) are the ones that are going to get hired.

    MMPI-2 isn't something given by HR people, and the answers to the questions aren't analyzed one-by-one anyway. Furthermore, one of the axes it measures is truthfulness in answering the questions, and this in turn affects the scores on other axes.

    Basically, you're looking too closely at the individual questions. This is a psychiatric test for rough clinical diagnosis.

    You might be asked to take the MMPI-2 if you are going to work with classified information in the military, but the hiring manager at Spud Corp isn't likely to know enough about the DSM IV to even understand the results.

  • by Anonymous Coward on Tuesday March 24, 2009 @10:17AM (#27311345)

    Fixed /. format mangling and put it in a pastebin: http://pastebin.com/f58b29f4f [pastebin.com]

    And on Freenet:

    CHK@dO6gV~xXO7~3uFnjB26oJdyyAviK-rZRT6s3QaQAcQY,JG0-2kjXf4LtZi6vqKjwRU5S0fXRmByDrwPoest0Nwk,AAIC--8/MMPI2-test-questions.txt

  • It seems to me that such posting of a limited amount copyrighted material for discussion purposes on a public-interest, non-profit Web site falls within the scope of the fair use exemption of US copyright law.

    Well, it doesn't.

    ""quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported." "

    None of that is what you're doing. Incidentally, the phrase you're really in trouble with is where the court is told explicitly to consider the substantiality of the quotation; you've quoted more than 1/8 of the entire work. Fair use lets you get away with quoting maybe five or six questions in a situation like this, not 75.

    Furthermore, you don't actually get to decline the request while you decide what to do. Declining a takedown is a final stance; if you say no, that's not "no while I figure it out", that's no period. You're supposed to be taking the content down until you're convinced it's legal (which it isn't).

    The only people here who will tell you that what you're doing is fair use are the people who have never read fair use doctrine. Fair use is for criticism and commentary, and is meant to cover the news and the newspapers talking about things. It is not a blanket to excuse you duplicating and disseminating whatever copywritten material you feel like, even if it's "only" nearly 15% of the complete work.

    You're way, way in the wrong here, and you need to call a lawyer and ask, before you get into serious trouble. Slashdot is not a lawyer.

  • No, it is illegal (Score:5, Informative)

    by coryking (104614) * on Tuesday March 24, 2009 @10:51AM (#27311727) Homepage Journal

    No it's not illegal to ask about anything in a job interview.

    Actually, you are wrong. In the United States, asking the following types questions of a candidate are illegal:

    1. Age.
      "When did you graduate from high school?" (legal "are you over 18?")
    2. Nationality.
      "What is your native language?" ("Are you authorized to work in the US" is okay)
    3. Marrital status/Family Status.
      "Are you married?", "Do you have any children?"
    4. Affiliations
      "Are you a member of the Illuminati?"
    5. Personal
      "What is your weight?" (legal: "can you lift 40 pounds?)
    6. Disability
      "Have you ever had a heart attack?" (this is a grey area though--think airline pilots, etc)
    7. Arrest Record
      "Ever been arrested?" (legal: "Ever been convicted of money laundering", and you are applying to be an accountant)
    8. Military
      "Did you serve in Vietnam?"

    (USATODAY [usatoday.com])

    Know your rights--keep in mind you may have more depending on the state you live in [washington.edu].

    Know that people aren't always aware they can't ask these kinds of questions. You are also free to disclose any of it, like your age, even if they don't ask (many people disclose their age on their resume and don't even realize it. Never add the date when you graduated from high school.)

    The key here is that if an employer bases their hiring decision on the fact you served in Vietnam, they are in the wrong. If they didn't hire you as a programmer because you are 45, they are wrong. If they didn't hire you as some hot-shot because you have kids, they are wrong.

(1) Never draw what you can copy. (2) Never copy what you can trace. (3) Never trace what you can cut out and paste down.

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