DMCA Takedown Scandal, Part Two 153
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."
Reigned vs. reined ... (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.
Re:Not a solution. (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
Penalty of Perjury (Score:4, Informative)
Under Section 512 of the DMCA, all requests must include
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.
Re:Penalty of Perjury (Score:1, Informative)
IANAL, but I read that as stating that only a violation of the second half of that sentence, that the complaining party is authorized, has a penalty of perjury. What you're suggesting might be better implied by "A statement, under penalty of perjury, that the information in the notification is accurate..." etc.
Little recourse?! (Score:5, Informative)
Re:The takedown notice system isn't inherently bad (Score:4, 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.
Re:Not a solution. (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 [thefreedictionary.com]
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.