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."
Not a solution. (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.
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
Re:Not a solution. (Score:5, Insightful)
Re:Not a solution. (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.
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It depends on what you call a right and what you call infringing?
Are laws against murder infringing on a person's right to kill? Obviously not, as almost no one thinks that the right to kill whom we please should be a right, and most belive that a person has a right not to be killed.
How about the right to work or industry with laws against pollution? Well pollution infringes on others rights, but those laws infringe on the worker/industrialist's rights as well. Which infringement is worse?
In the end any
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.
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More specifically the law against murder makes the proposition of using lethal force in self defense much dicier than it would otherwise be because you then have to worry about what people are going to think in retrospect. You also lose the ability to deter others
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Of course laws against murder infringe upon ones right to kill. It's just that by general agreement we've decided we're better off giving up that right so as to greatly reduce the likelihood of being murdered by somebody that's pissed off by us. More specifically the law against murder makes the proposition of using lethal force in self defense much dicier than it would otherwise be because you then have to worry about what people are going to think in retrospect. You also lose the ability to deter others by putting the person's head on a pike. Not that it isn't an overall worthwhile trade off, but you are having your rights infringed by the arrangement.
I've always felt that it should be understood that anyone who does certain activities is so unconcerned for their own safety that they give up their legal right to be protected by the law. This includes breaking into someone's house, mugging them, etc. If those activities became more dangerous by being more likely to result in the perpetrator being legally shot and killed, it could only be a good thing. There is no good, morally/ethically correct reason why a homeowner who is faced with an (armed or pote
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So you decide which certain activities others have given up their right to? Or who? Perhaps the law could decide who has given up their legal right to be protected by the law...
Some people would claim that trespassing on land revokes legal rights, but I'd wager just about everyone has at least accidently gone onto someone else's land without permission, at some time in the past.
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True. That is the purpose of having a government in the first place. You also gave a good example why: because otherwise my right to life, property and whatever can be revoked whenever someone, anyone, thinks that I don't deserve them.
In a society where the government didn't insist
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Also, you're unlikely to return a bat at i.e. 3am. Additionally, in many (most?) hoseholds you have more than one person on premises, like family members. Now you have multiple witnesses who would all have to lie in order to paint your scenario.
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...take 5 minutes and no tools to create. Besides, something as forgetting to lock your back door should not make one fear prosecution in a world where homeowners (no protection for renters?) don't have to fear it for attacking intruders, should it?
Bob works a late shift. Besides, something completely out of your control, like when an intruder decides to come by, should not one make fear prosecution in a world like that? Intruders would
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Even there, the law is careful to limit the problem. The exceptions are decently identified and many state laws make the most likely exceptions explicit. (most famously the "shoot the carjacker" law).
Falsely accusing someone of murder carries serious penalties and generally requires significant evidence to even be taken seriously.
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"Reasonable law, by the way, would see everything copyrighted before about 1970 in the public domain - and possible some things even later than 1970."
if it really was Sunday December 2009, that would still be a huge nightmare.
the dmca is an unreasonable law if only because it was written like a patch to stop the downloading of content.
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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"?
Re:Not a solution. (Score:5, 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.
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Exactly. Current copyright durations are far too long and the extensions clearly do not serve the purpose of encouraging publication.
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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.
Re:Not a solution. (Score:4, 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.
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Sorry - no, I don't favor 40 year copyright terms. I just used that as a point that begins to enter the realms of sanity. Today, we live with life of the author, + 50 years for some works, and the organizations like RIAA are trying to push for longer limits. Totally insane.
I really favor 12 to 15 year copyright terms - which was about what we had when copyright was invented. I'm also willing to compromise, somewhat. Lives are much longer today, it really does take a much larger investment to create som
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Movies, for instance, I might justify 20 to 25 year protections.
When the good ones make huge profits the wekend ther're released? Although I don't think 20 years is too unreasonable for any work, and I don't think the cost of the creation should have any bearing on it. Drug research is incredibly expensive, but they're covered by patents, which only last 20 years.
I don't see why lifespan should have anything to do with it, either. Just because the average person lives longer doesn't mean everyone does. Life
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"Yours, on the other hand, could have been penned by Asimov himself ;)"
And, flattery will get you anywhere you want to go, LMAO
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You can't polish a turd, but you can roll it in sparkles!
Re:Not a solution. (Score:5, Funny)
You can't polish a turd
What? I thought the Mythbusters proved that you can polish a turd. [discovery.com]
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Ah the internet, an endless fount of useful knowledge.
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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?
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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?
If you want that to be effective, we need a loser-pays system for civil lawsuits. That is, whoever loses the lawsuit is liable for both their own legal expenses and those of the victor of the suit, in addition to any damages awarded. If you don't have this, then you have average individual Americans up against a well-funded army of corporate lawyers with nothing to equalize the odds.
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And if you have it, that average individual American taking on an army by himself will also get to pay their bills if he lose
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I don't really know if that'd be socialism (and I'm no fan of central control). The court system is a legitimate function of government. If the tax dollars pay legal bills so that citizens are better able to utilize this func
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In theory, the penalty for falsely sending DMCA takedown notices is five years in prison. Perhaps the problem is enforcing that law, not making the penalty larger.
Actually, I'm full of it. (Score:2)
The perjury penalty only applies to saying you're the copyright owner (or entitled to speak on their behalf), nto the actual claim. My misunderstanding.
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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 ;)
I'm not sure there's any real need. A penalty is built in to a DMCA takedown notice: "I swear under penalty of perjury...."
So all you need to do is get a few of them on trial for perjury.
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As one of the replies to a sibling post states, the perjury penalty is only for falsely saying that you're the copyright owner or a representative of the copyright owner. In this case, the company sending the DMCA notices was a representative of the copyright owner.
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As one of the replies to a sibling post states, the perjury penalty is only for falsely saying that you're the copyright owner or a representative of the copyright owner. In this case, the company sending the DMCA notices was a representative of the copyright owner.
I wish we had a good legal definition of "fair use". Right now, fair use is a defense if you are sued. That's all it is. There is no law that says "if your use meets these criteria, then no one can successfully sue you." If we had such a good definition, we could then extend that perjury penalty to also apply to any takedown notices issued against people who were engaged in legally recognized fair use. That would greatly cut down on the abuses, assuming the "fair use" definition were not bought and pai
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The penalty for falsely sending a DMCA takedown notice is a perjury prosecution. Someone should be thrown in jail for it.
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Re:Not a solution. (Score:4, Insightful)
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Enshrine in law people's right to circumvent digital restrictions ALWAYS. If people are committing copyright infringement while circumventing a digital restriction they're still infringing copyright, there's no need to add another offense to the list.
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Do you know where I can buy DMCA repellant? Hell, a more generic shoddy-law repellant would do the job too.
... with apologies to the late Bill Hicks.
*sprays can* PFSSSSSSSHHHHT... "What's that?" "Oh that? That's DMCA repellant!"
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The proper way to resolve this, is to repel the DMCA
I'm repelled by that DMCA! (loved that typoo;)
But how are we to repeal it when Congress is owned lock, stock, and barrel by the corporatti? This is a plutocracy. You can only get laws passed or repealed by bribing politicians here.
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i would say use SecondLife since its the closest to "real world"
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I think he meant "rocket-propelled grenade".
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.
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Re:Reigned vs. reined ... (Score:4, Funny)
You, sir, rain supreme.
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You, sir, rain supreme.
If that where the case then they might one day loose they're supremacy.
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Dude, no whey!
Oh kdawson (Score:5, Funny)
Troll me harder kdawson. HARDER, troll me harder!
I need it so bad.
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DMCA is as bad as it is because in the US, a lawsuit is not just a process to negotiate about infringements and punishments: it's a punishment in itself. Lawyers are highly expensive, with no guarantees of a favorable outcome.
Hence, if you get a letter saying "take that down or we'll sue", you don't start arguing because it can easily drive you bankrupt. However, no organization (including the government) should ever have this kind of censorship potential, especially on the internet.
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I want to see pictures. Hot dirty pictures.
I like it (Score:2)
CmdrTaco's pants takedown scandal, part two (Score:5, Funny)
CmdrTaco's pants were taken yet down again, due to a DMCA request.
Legal recourse for malicious notices. (Score:2)
Not sure what world you live in, but there have been more than a few lawsuits against people issuing malicious/bogus DMCA notices, and they've not went the way the original issuer wanted.
Short version of how it works:
Company sends notice to your ISP
ISP/whatever shuts you off
You send a counter notice
ISP turns you back on
You both sue each other and fight it out.
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Of course, I may be talking out my rear, but who knows. I'
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You both sue each other and fight it out.
And the winners are - the lawyers!!
Repeal the law... (Score:5, Insightful)
The internet is overwhelmingly against the DMCA, why keep it?
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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?
Re:Repeal the law... (Score:4, 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!
The answer is money once again (Score:2)
The internet is overwhelmingly against the DMCA, why keep it?
The internet doesn't purchase* as many politicians as the MPAA and RIAA members.
* I mean bribe**
** I mean 'offer campaign contributions'
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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?
In the mind of a politician, if a law is not working that can mean nothing more than it needs to be strengthened, not that it was pointless in the first place.
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Because the internet does not make laws. People on teh **AA's paychekcs make laws.
But people who use the net vote, pick up the phone type a letter do something it can work just ask australians about the emissions trading scheme. you just have to do something and if the campaign doesn't change their mind then vote them out
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But people who use the net vote, pick up the phone type a letter do something it can work just ask australians about the emissions trading scheme. you just have to do something and if the campaign doesn't change their mind then vote them out
Was that a real sentence?
The problem with DCMA takedown notices (Score:2)
Re:The problem with DCMA takedown notices (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
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*wipes eyes* Thanks man, I needed that.
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Just a quick question. How long did that take you to come up with? I mean I know what it is based on, but did it just pop unbidden into your head, or did you really work on it?
The takedown notice system isn't inherently bad (Score:5, Insightful)
Re:The takedown notice system isn't inherently bad (Score:4, Insightful)
The only reason there's any positive at all to the DMCA is because of the ridiculous copyright system already in place.
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Why just limit duration? Make copyright apply only to commercial activities and Hollywood can still make ridiculous amounts of money with movie theaters, Adobe can still sell to corporations, and authors can still sell paper books to people who prefer reading that way, without infringing on any of our rights.
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Commercial = money is being made from its use. Distribution for free is allowed. So you can spread my movie around all you want but since movie theaters are a money making enterprise, I still have a monopoly on movie theaters and will still make large amounts of money.
Your system also has a "setting the boundary" weakness. If I take a book, change five instances of the word "big" for "large", and redistribute it, that won't be copyright infringement. You can argue that that's not a significant change, but t
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So under that definition is Youtube commercial or not? They have advertisements. Is that enough to make it commercial? If so, in your world it needs to still get protection. So you still need some sort of DMCA or similar safe-harbor legislation.
I agree that a Larry Lessig type system will have boundary setting problems and deciding where exactly they are isn't easy. These are complicated issues that people much smarter than I have thought a lot about. And they certainly can't be distilled down effectivel
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.
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I've been looking for something to substantiate your numbers. I'm not accusing you of being wrong, but the best number I saw was "more than a third aren't legit" from a briefing by Google to the NZ gov't ( http://www.newmediarights.org/copyright/digital_millennium_copyright_act_dmca/google_many_takedown_notices_are_baloney [newmediarights.org] )
Personally, I'd rather see this resolved by increased penalities for bogus takedown requests than by removing the takedown provisions completely. Most copyright violation claims are *s
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I've been looking for something to substantiate your numbers. I'm not accusing you of being wrong, but the best number I saw was "more than a third aren't legit" from a briefing by Google to the NZ gov't ( http://www.newmediarights.org/copyright/digital_millennium_copyright_act_dmca/google_many_takedown_notices_are_baloney [newmediarights.org] [newmediarights.org] )
That's pretty bad, because it doesn't factor in two other situations.
1) Copyrighted works protected by fair use, but taken down anyway.
2) Other countries that don't recognize the DMCA yet.
As a Canadian, I still have more rights than the USA's fair use permits. Every time the DMCA is used to remove content uploaded by a Canadian to a Canadian site, that sways the false usage numbers a bit.
Unfortunately, those numbers aren't tracked - but consider how many countries don't yet follow in the USA's footsteps, an
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Agreed in general, but an honest question:
"Every time the DMCA is used to remove content uploaded by a Canadian to a Canadian site"?
Canadian ISPs honor DMCA takedown notices? Wow.
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Canadian ISPs honor DMCA takedown notices? Wow.
I don't know about the ISPs, but most web hosting companies would - unless you're paying for a VPS or dedicated server.
Shared hosting = Removed + notification sent.
VPS/Dedicated = Contacted with request for removal or proof within 48 hours.
A lot of these companies also have farms in the US, so pissing off US companies isn't a great strategy. And actually ending up in court would be costly, so sometimes it's easier to just comply.
Ex: http://vpsville.ca/ [vpsville.ca]
ISPs like Telus and Shaw tend to pass along copyright in
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Indeed, I should have said hosting provider. Indeed. Thanks for the info.
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Canada (currently*) has it better: if someone gives a legal notice to the ISP, the ISP passes it on to the customer to decide.
I think the notice required is whatever one typically gives in order to commence a lawsuit, but I haven't read all of Halsbury's yet, so I don't know (;-))
--dave
* This may change if the secret antipiracy treaty currently being debated worldwide passes.
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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.
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Your reading comprehension is very poor, because it explicitly says of the "right that is allegedly infringed". This means that if I allege that you violate the distribution right of "District 9", then the statement under perjury is that I'm authorized to act on violations of the distribution right of "District 9". No more and no less, whether the distribution right of "District 9" has actually been violated is completely irrelevant.
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on copyright holder of the material that is being infringed upon. Now the answer would be clear if the material they claim is infringed upon is the same as the infringing material. Now what if they wrongly accuse me of infringing upon X, by claiming I'm not allowed to distribute Y to which they have no legal rights?
That is, if I distribute Open Office, and Microsoft comes claiming I'm not authorized to distribute these copyrighted files...
it is then arguable if they are okay because they believe I am distri
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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.
slashdotted. cache (Score:2)
http://209.85.229.132/search?q=cache:E6SCqgDxxGAJ:www.freedom-to-tinker.com/blog/mfreed/erroneous-dmca-notices-and-copyright-enforcement-part-deux+freedom+to+tinker+erroneous+dmca&hl=en&gl=uk&strip=1 [209.85.229.132]
Little recourse?! (Score:5, Informative)
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> 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
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"Its a civil matter, Sir"
There's no such thing as a civil felony.
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You're an idiot. (Score:2)
Filing a false notice is a fucking FELONY (17 USC 512).
No, it isn't. Deliberately filing a false notice when you know you're not the rightsholder is perjury. However the problem is that you'd have to *prove* that they filed it deliberately. If they say "whoops, we thought that file labeled 'Usher221.mp3' was ours" then there is nothing you can do about it.
Call the police and press charges.
What are the odds that a DA would take on a case like that, when they could instead focus their efforts prosecuting people for "creating child pornography" [foxnews.com] so they can get re-elected?
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Police: "First, make sure it's dead."
BANG. "OK, it's dead. Now what?"