I really don't like the editorializing of this headline. There has been lots of commentary about the potential rights abuse the DMCA imposes.
The headline implies that it's being recognized by someone in a position of authority (supreme court, senators, etc) but it's actually an article about a paper being written that criticizes DMCA.
In the larger picture, it very much seems that Youtube's decision to stand firm on the DMCA takedown of the Mccain campaign videos was the right thing to do.
You speak as if they have a choice. If YouTube refuses to stand firm on the DMCA takedown they lose their safe-harbor. Which means YouTube is 100% liable for any copyright infringement happening on the site. Not something you want when users upload your content.
We need cases like this to show that certain bills simply violate our rights as Americans. Remember this?
I don't understand the argument here. Maybe I'm missing something, or maybe there is bias in how this is reported.
If I understand correctly, then anyone with certain authority can file a DMCA takedown notice, which results in the removal of protected content. Anyone who posted the content and wants to challenge that notice can also do so, resulting in the restoration of the content, but not until a few days later.
In the long run, this mechanism does not suppress free speech or prevent the information from being distributed if proper counters are filed. However, in the short term it can delay that distribution. This is still potentially significant, but it is a different situation.
The position of this article and the lawyer it mentions seems to be that the "window" here is a problem, and should be removed. But isn't it fairly normal in matters of legal dispute for courts to make temporary orders that leave options open as much as possible while the case is heard and a considered decision can be made?
In the Internet age, any interesting information that gets out tends to stay out and spread within a matter of hours, so it seems to me that if you allow an immediate counterclaim to be filed and the information to be restored without delay, this will in practice negate the benefit of the whole DMCA takedown process and make copyright protection fairly pointless as realistically it will be unenforceable.
Of course, there is also the balancing point that other kinds of information that have only short term relevance could be censored for long enough that they also become worthless, as in the election case.
Fundamentally, I don't think you can ever solve this problem completely unless you can have a proper court decision made within hours of detecting allegedly infringing content. It's not reasonable to expect content hosting services or ISPs to become judge and jury.
That being the case, I wonder if the current situation, where material can be temporarily blocked but only for a few days, really is the best compromise. That allows time for all parties concerned to make representations to a court, and the court should certainly be able to penalise anyone who it determines was deliberately abusing the system either way around. But at least the right (as in, court-ordered) long term decision about the release or containment of the information will be possible in most cases, and there is a limit on the amount of damage that can be done in the short term. Given the potential damage in cases like these once Pandora's box is opened, and the relatively limited damage that is likely if release is delayed for just a week or two, is that such an unreasonable compromise?
The real issue here is that there are not real penalties for abuse of the DMCA. DMCA takedown notices have been filed in cases of trademark dispute (for example), even though the DMCA only covers copyright. What really needs to happen is that we need to send plaintiffs and lawyers to jail for abuse of the DMCA. Then people will only file notices when there is a real reason, not just because some automated process noticed the a YouTube video has the same name as a Britney Spears song, even though the video has nothing to do with Britney Spears or her music.
[edit] There was a real case where someone's YouTube video was sent a takedown notice because the name of the video was the same as the name of a copyrighted work, even though the content was completely original and had nothing to do with the copyrighted work.
[edit2] Part of the issue here is that it's hard to get rulings against large corporations over crap like this unless I can state to the court that I lost $X-million in revenue due to the content being taken down. If I'm a home user that put a homevideo online just to share it with the world, I apparently have less rights that the corporation that sends out 300 DMCA notices/day.
Absolutely right. A two-week takedown isn't that bad if whoever files the DMCA notice risks getting creamed if the notice is improper. Like if you file a DMCA notice on something that's a clear-cut case of non-infringement and it's thrown out, you have to pay the guy a very hefty fine.
Or if you file a claim that says someone is infringing 'copyright' by using a trademarked name they doubly need to be slapped down since the lawyers themselves should know better than to confuse trademark and copyright. That kind of crap is just a ploy to threaten someone in a trademark dispute without actually filing legal papers (especially if you don't really own the trademark).
Incorrect. Remember any legal action has legal consequences.
If I file a law suit that costs the defendant millions due to bad PR, and it turns out the law suit had no basis, the defendant will counter-sue me for the damages caused by a base-less law suite. However there are practical problems with this. In theory this was what would discourage DMCA abuse when the law was written, in the practical sense it does not.
A DMCA notice is not a legal action though. It's not filed with a court. It's basically a C&D letter send to a host or ISP that is serious business for the host or ISP (b/c they could lose their Safe Harbor protections if they don't follow it) but the only penalty that the letter-sender might possibly incur is a charge of perjury. The take-down notice basically states "I believe that X is really my copyright and that I have not authorized it to be distributed in such a manner. I agree that I believe this is the truth under penalty of perjury."
The statement is nebulous. To prove perjury, you would have to prove that they did not believe that the copyright was owned by them. Proving that is a tall order in court, and perjury seems like a slap on the wrist compared to the damage that can be down when the power of the DMCA-take-down-notice is abused.
This is why DMCA notices are basically an unchecked power given to 'rights holders' in a world ever everything that is produced gains an implicit copyright.
"isn't it fairly normal in matters of legal dispute for courts to make temporary orders"
That's the issue: there's no court involved. An abusive DMCA notice can be filed and take stuff offline for two weeks.
If you go to a judge and get a temporary order, and that's later found out to have been a malicious tactic, the judge will be pretty unhappy. But what really happens when incorrect DMCA takedowns are sent?
If you go to a judge and get a temporary order, and that's later found out to have been a malicious tactic, the judge will be pretty unhappy. But what really happens when incorrect DMCA takedowns are sent?
> If I understand correctly, then anyone with certain authority can file a DMCA takedown notice, which results in the removal of protected content. Anyone who posted the content and wants to challenge that notice can also do so, resulting in the restoration of the content, but not until a few days later.
Hopefully resulting in the restoration of the content. There's no guaranty that a service provider will restore the content, and the bar to getting a counter filed is relatively high (to an individual with no legal resources, etc).
The problem is that service providers are liable to get bent over if they don't respond to valid DMCA notices, so they're likely to overreact when they get invalid ones as well. If they remove something for improper reasons, though, there's no law backing the user up.
>In the Internet age, any interesting information that gets out tends to stay out and spread within a matter of hours, so it seems to me that if you allow an immediate counterclaim to be filed and the information to be restored without delay, this will in practice negate the benefit of the whole DMCA takedown process and make copyright protection fairly pointless as realistically it will be unenforceable.
If someone files a counter-claim, they're providing you with a name and address and saying "if you want to dispute this, come sue me". No one's going to file a counter-claim if they don't think it's a slam-dunk to win, because a counter-claim is literally taunting a giant legal team to sue you.
Not to mention that if you are in a different country, for a US site to comply you must also give the DMCA claimer rights to sue you in their country. So a Frenchment posting a YouTube video and getting a DMCA notice in US will have to agree to go to a US court in return for their content being put back up. Evil.
In the long run this mechanism does suppress free speech. If one party on a debate was forced to always wait 2 weeks until responding, would you not consider that a disadvantage over the long run?
It sounded to me like the real issue the paper had was that the DMCA takedown system works on the principle of "guilty unless proven innocent" in situations where they argue it would not be straightforward for even a court to decide if fair use applies.
Your solution sounds reasonable at first glance, but I don't know where you live where the courts could be counted on to even start thinking about scheduling a hearing within two weeks.
Your opinion of which damage is most severe to you, that monetary loss is more severe than suppression of free speech, is natural if you are a content provider. Whether that would also be the judgment about society as a whole is not at all clear to me.
> If one party on a debate was forced to always wait 2 weeks until responding, would you not consider that a disadvantage over the long run?
Of course, but it seems to me that the problem here is not the two-week window, as much as the insufficient penalties for abusing it.
If someone repeatedly files DMCA takedown notices against the same party, or against multiple parties related in some way (same organisation, common interest, whatever), but repeatedly fails to bring an actual lawsuit or otherwise contest counter-notices, then that person or organisation should open themselves to a harassment lawsuit with the risk of penalties based on actual damages + punitive damages based on the general harm of allowing suppression without cause, if a court finds that they really didn't have reasonable grounds for filing the original notices (as opposed to, for example, being well within their rights to file, but not having the money to follow through with a full court case against a megacorp after counterclaims were filed).
Two weeks on the internet these days can be the difference between success and complete failure of a product or service. Imagine you prepared a campain for something available only from your site for a couple of months... you've got ads, articles, etc. with the release date. Some competitor files a DMCA takedown notice that day and anyone who heard about your product gets a "404 account suspended" response. It doesn't cost them anything and you don't matter anymore - in two weeks people won't remember your product.
Now I wonder how hard would it be to file DMCAs for the government websites... white house, etc.
DMCA notices are different. They apply when a site cares about Safe Harbor. Lets say your ISP cares about claiming safe harbor so they are not responsible for YOU uploading illegal content.
The White House does not care. Sue em. So you can claim anything you want, there is nobody trying to claim safe harbor so they can do whatever.
If I am taking responsibility for all content on my site, then I am not trying to go for safe harbor, if I know none of it hits any copyright violations I will never use safe harbor and take any content down. However my ISP might take my site down if the complaint is made to my ISP not to me because my ISP does not know/care if I am hosting copyrighted content because they don't want the legal headache.
In the company case, you could try taking it based on any material as far as I understood... let's say demonstration videos or any content that you could claim really and request the hosting company to take down the site.
Yeah - white house was a bad example really, but there has to be something government-related which is hosted on shared servers (local communities info sites / city hall?)
"If I understand correctly, then anyone with certain authority can file a DMCA takedown notice, which results in the removal of protected content. Anyone who posted the content and wants to challenge that notice can also do so, resulting in the restoration of the content, but not until a few days later."
No. Anyone. Period.
"In the long run, this mechanism does not suppress free speech or prevent the information from being distributed if proper counters are filed. However, in the short term it can delay that distribution. This is still potentially significant, but it is a different situation."
Again incorrect. DMCA states that to file a counter notice, you are allowing the DMCA violation filer to go after you in court in their country. So if I am from France and post an article about The Church of Scientology, to counter the DMCA I would have to allow TCOS to sue me in US courts, not in my country's courts. The reason I mention TCOS is because they abused DMCA a few years back silencing most information online giving them negative PR. Only few actually filed counter notices.
In general most people don't file counter-notices because their are either scared about legal procedings or don't know what part hit the DMCA clause, don't want to be taken to court (remember the DMCA notice does not mean the person even knows who you are, they just got information forwarded through the ISP or whatever service) while the counter notice reveals who you are.
I'm intrigued by this provision about filing in other countries, which I hadn't heard about before.
How does this work? Surely someone in the US can already sue you in US court, in principle. If you live in another country and don't turn up to defend yourself, would they not win by default, and perhaps be awarded some form of damages which you would then, in principle, owe them? But since the US courts have no jurisdiction outside US territory, most foreigners would just ignore such a silly legal action anyway, other than avoiding going to the US in the future.
Unless some form of compulsory extradition is involved, I don't see how the DMCA thing is any more of an abuse than the above scenario. TCOS can try to sue me all they like, but since I'm here and they're there, I will just ignore them, and so will my country's government. What is the danger that I'm not understanding here?
The headline implies that it's being recognized by someone in a position of authority (supreme court, senators, etc) but it's actually an article about a paper being written that criticizes DMCA.