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DMCA Takedown Scandal, Part Two

kdawson posted more than 4 years ago | from the trying-harder dept.

Privacy 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."

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153 comments

Not a solution. (5, Insightful)

Anonymous Coward | more than 4 years ago | (#30506254)

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. (5, Informative)

sakdoctor (1087155) | more than 4 years ago | (#30506406)

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. (4, Insightful)

siloko (1133863) | more than 4 years ago | (#30506484)

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 ;)

Re:Not a solution. (5, Insightful)

Runaway1956 (1322357) | more than 4 years ago | (#30506532)

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.

Re:Not a solution. (0, Redundant)

siloko (1133863) | more than 4 years ago | (#30506582)

Well I was just being flippant - but is flippancy worse than day dreaming!? Sure my solution is like polishing a turd but it at least it aspires to the realms of possibility. Yours, on the other hand, could have been penned by Asimov himself ;)

Re:Not a solution. (1)

Runaway1956 (1322357) | more than 4 years ago | (#30506606)

"Yours, on the other hand, could have been penned by Asimov himself ;)"

And, flattery will get you anywhere you want to go, LMAO

Re:Not a solution. (1)

Falconhell (1289630) | more than 4 years ago | (#30506816)

You can't polish a turd, but you can roll it in sparkles!

Re:Not a solution. (5, Funny)

icannotthinkofaname (1480543) | more than 4 years ago | (#30507062)

You can't polish a turd

What? I thought the Mythbusters proved that you can polish a turd. [discovery.com]

Re:Not a solution. (0, Redundant)

slugstone (307678) | more than 4 years ago | (#30507718)

wow

Re:Not a solution. (1)

Gerzel (240421) | more than 4 years ago | (#30506846)

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 laws will "infringe" upon something someone thinks is their right. Thus law isn't about upholding all rights but upholding those deemed most important.

Furthermore the law has another mandate, that to establish some kind of order, peace and the general welfare of the nation, which is beyond and may at times belay the establishment of rights.

Re:Not a solution. (5, Informative)

Runaway1956 (1322357) | more than 4 years ago | (#30506954)

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.

Re:Not a solution. (0, Redundant)

DJRumpy (1345787) | more than 4 years ago | (#30507254)

Excellent post. Mod parent up please.

Re:Not a solution. (0)

Anonymous Coward | more than 4 years ago | (#30507602)

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.

In all honesty, I find copyright as a whole should have failed those tests if they were properly applied in the beginning.

Re:Not a solution. (0)

Anonymous Coward | more than 4 years ago | (#30508020)

Then you obviously aren't a content creator.

Re:Not a solution. (1)

hedwards (940851) | more than 4 years ago | (#30507164)

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.

Re:Not a solution. (1)

causality (777677) | more than 4 years ago | (#30507722)

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 potentially armed) intruder should ever have to worry about prosecution for any amount of force used against said intruder. If the intruder doesn't like that, he can always decide not to break into someone's home.

No, the only reason why such a legitimate case of self-defense would ever be prosecuted has nothing to do with ethics or morality or good legal precedent. It's because the government wishes to have a monopoly on the use of force.

Re:Not a solution. (0)

arose (644256) | more than 4 years ago | (#30507962)

There is no good, morally/ethically correct reason why a homeowner who is faced with an (armed or potentially armed) intruder should ever have to worry about prosecution for any amount of force used against said intruder.

Bob, thanks for letting me borrow your truck, but I forgot my baseball bat, could you bring it over tonight on the way home? The back door is open.

It was horrible officer, I heard this noise from the back door. I grabbed my gun and went to investigate and suddenly this man was coming towards... Bob! God lord Bob, why didn't you turn on the light!

Re:Not a solution. (1)

kesuki (321456) | more than 4 years ago | (#30506908)

"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.

Re:Not a solution. (2, Insightful)

sxeraverx (962068) | more than 4 years ago | (#30507422)

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. (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30507564)

A study slashdotted last year said the economic lifespan of creative work was only about 14 years.

and your govt wants ACTA (1)

CHRONOSS2008 (1226498) | more than 4 years ago | (#30507786)

which makes the DMCA look like a picnic

howabout we over thorugh your govt and toss it into the volcano , for hte god of stupidity and also toss in a few hundred riaa/mpaa lawyers and JOE BIDEN there main main of course after OBAM.AA

Re:Not a solution. (4, Interesting)

sjames (1099) | more than 4 years ago | (#30507996)

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.

Re:Not a solution. (2, Insightful)

HangingChad (677530) | more than 4 years ago | (#30506842)

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?

Re:Not a solution. (1)

causality (777677) | more than 4 years ago | (#30507742)

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.

Re:Not a solution. (1)

Joe Decker (3806) | more than 4 years ago | (#30507056)

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. (1)

Joe Decker (3806) | more than 4 years ago | (#30507112)

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.

Re:Not a solution. (1)

jimicus (737525) | more than 4 years ago | (#30507274)

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.

Re:Not a solution. (1)

quanticle (843097) | more than 4 years ago | (#30507322)

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.

Re:Not a solution. (1)

causality (777677) | more than 4 years ago | (#30507760)

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 paid for. Perhaps that's a big "if".

Re:Not a solution. (1)

jonbryce (703250) | more than 4 years ago | (#30507308)

The penalty for falsely sending a DMCA takedown notice is a perjury prosecution. Someone should be thrown in jail for it.

Re:Not a solution. (1)

TapeCutter (624760) | more than 4 years ago | (#30507782)

It's not that simple. While I would love to see Anthony Watts behind bars he has the excuse that his website was displayed in the "climate crock of the week" video that he tried to take down. Since he has trouble understanding all sorts of things it is not a streach to claim he belived he was telling the truth and thus did not commit purgery.

Re:Not a solution. (0)

Anonymous Coward | more than 4 years ago | (#30507416)

You already state on penalty of perjury that a DMCA takedown is true. This has always been true, and kdawson and his sad anti-copyright piracy loving hippies here on slashdot still keep cheerleading for pathetic little thieves rather than content creators.

Fucking get a job hippies, and stop leeching off everyone else.

Re:Not a solution. (3, Insightful)

dbIII (701233) | more than 4 years ago | (#30507872)

Please correct me if I'm wrong, but isn't there already harsh penalties for sending out false DMCA takedown notices in the law already? Also isn't it the case that these penalties have NEVER been applied? Without any sort of check or balance it is an unjust law, and if there are theoretical checks and balances that are never applied it is still an unjust law.

Re:Not a solution. (1)

selven (1556643) | more than 4 years ago | (#30506910)

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.

Re:Not a solution. (1)

DAldredge (2353) | more than 4 years ago | (#30507260)

Why do you want the safe harbor provisions of the DMCA to go away?

Re:Not a solution. (1)

causality (777677) | more than 4 years ago | (#30507696)

The proper way to resolve this, is to repel the DMCA

Do you know where I can buy DMCA repellant? Hell, a more generic shoddy-law repellant would do the job too.

*sprays can* PFSSSSSSSHHHHT... "What's that?" "Oh that? That's DMCA repellant!"

... with apologies to the late Bill Hicks.

Re:Not a solution. (1)

Anonymous Coward | more than 4 years ago | (#30506520)

I disagree. The proper way to solve these problems is via RPG.

Re:Not a solution. (0)

Anonymous Coward | more than 4 years ago | (#30506746)

Awesome. DnD or WoW?

Re:Not a solution. (1)

RobertLTux (260313) | more than 4 years ago | (#30508058)

i would say use SecondLife since its the closest to "real world"

Re:Not a solution. (0)

Anonymous Coward | more than 4 years ago | (#30507174)

They'll just find someone else to do their dirty work now

Or Nexicon could just assume a different corporate identity and get re-contracted, which is probably the most likely scenario.

Reigned vs. reined ... (5, Informative)

Anonymous Coward | more than 4 years ago | (#30506270)

These highly questionable practices have reigned for a long time, but in this case may have been reined in...

Your english teacher.

Re:Reigned vs. reined ... (1)

Dun Malg (230075) | more than 4 years ago | (#30506670)

Next you're probably going to tell me that the Mongol hoards didn't like to horde their treasure..... (or should that be "there treasure"?)

Re:Reigned vs. reined ... (1)

Xaduurv (1685700) | more than 4 years ago | (#30506776)

Next you're probably going to tell me that the Mongol hoards didn't like to horde their treasure..... (or should that be "there treasure"?)

*HEAD-A-SPLODE*

Re:Reigned vs. reined ... (3, Funny)

sxeraverx (962068) | more than 4 years ago | (#30507428)

You, sir, rain supreme.

Re:Reigned vs. reined ... (1)

causality (777677) | more than 4 years ago | (#30507768)

You, sir, rain supreme.

If that where the case then they might one day loose they're supremacy.

Oh kdawson (5, Funny)

Anonymous Coward | more than 4 years ago | (#30506280)

Troll me harder kdawson. HARDER, troll me harder!
I need it so bad.

Re:Oh kdawson (1)

Jurily (900488) | more than 4 years ago | (#30507318)

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.

I like it (1)

Demonantis (1340557) | more than 4 years ago | (#30506284)

At least some companies realize that IP addresses != people. I might have hope for corporations after all.

CmdrTaco's pants takedown scandal, part two (5, Funny)

Anonymous Coward | more than 4 years ago | (#30506384)

CmdrTaco's pants were taken yet down again, due to a DMCA request.

Legal recourse for malicious notices. (1)

BitZtream (692029) | more than 4 years ago | (#30506410)

while there may be little legal recourse to issuing invalid DMCA notices

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.

Re:Legal recourse for malicious notices. (1)

Machtyn (759119) | more than 4 years ago | (#30507016)

But that's only to resolve the display of content. The problem is the DMCA issuer can then pursue legal recourse against you for actual damages. Granted, you would have to fight back, but there is little teeth in the DMCA for the defendant to demand that the issuer is in the wrong and fraudulently issued the notice in the first place. (Because that would cost money, and we know that DMCA recipients are usually far poorer than the DMCA issuer.)

Of course, I may be talking out my rear, but who knows. I'm not even sure what country or regime I'm living in anymore.

Re:Legal recourse for malicious notices. (1)

catman (1412) | more than 4 years ago | (#30507024)

You both sue each other and fight it out.

And the winners are - the lawyers!!

Repeal the law... (5, Insightful)

Darkness404 (1287218) | more than 4 years ago | (#30506444)

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?

Re:Repeal the law... (2, Insightful)

Anonymous Coward | more than 4 years ago | (#30506574)

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... (0)

Anonymous Coward | more than 4 years ago | (#30506628)

Because the internet does not make laws. People on teh **AA's paychekcs make laws.

Re:Repeal the law... (1)

vlad30 (44644) | more than 4 years ago | (#30507334)

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

Re:Repeal the law... (3, Insightful)

Jah-Wren Ryel (80510) | more than 4 years ago | (#30507198)

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 (1)

jonaskoelker (922170) | more than 4 years ago | (#30507864)

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'

The problem with DCMA takedown notices (1)

bugs2squash (1132591) | more than 4 years ago | (#30506450)

is that there are just not enough of them out there. If there were FAR more, then there would be a lot of people calling their congressman. The solution to DCMA involves its own petard.

Re:The problem with DCMA takedown notices (5, Funny)

Dachannien (617929) | more than 4 years ago | (#30506546)

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

Re:The problem with DCMA takedown notices (1)

geminidomino (614729) | more than 4 years ago | (#30507110)

*wipes eyes* Thanks man, I needed that.

Re:The problem with DCMA takedown notices (1)

nextekcarl (1402899) | more than 4 years ago | (#30507380)

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?

Re:The problem with DCMA takedown notices (1)

afaik_ianal (918433) | more than 4 years ago | (#30507712)

If ever there were an opportunity for mods to put Informative points on a humorous post, this was it.

The takedown notice system isn't inherently bad (5, Insightful)

JoshuaZ (1134087) | more than 4 years ago | (#30506510)

The DMCA take down system isn't inherently bad. It protects ISPs and various hosts from what would otherwise be severe liability. Wikipedia and Youtube would never be able to function if they didn't have the liability protection they get from the system as long as they comply promptly with reasonable requests. The system does need some reform but reform is not abolition.

Re:The takedown notice system isn't inherently bad (3, Insightful)

MindlessAutomata (1282944) | more than 4 years ago | (#30506780)

The only reason there's any positive at all to the DMCA is because of the ridiculous copyright system already in place.

Re:The takedown notice system isn't inherently bad (1)

JoshuaZ (1134087) | more than 4 years ago | (#30506866)

Suppose massive copyright reform. Say you suppose that copyrights last no more than a decade. Guess what? People will still be uploading current TV shows, music videos and and movies to Youtube. People will still be copying and pasting text into Wikipedia from other websites. Even with copyright reform, the majority of copyright problems handled by the DMCA take down notices will still occur. The notice system is an attempt to balance the need to protect copyrights (which is real) with the need to protect ISPs and other content hosts. There are problems with how that balance has been struck. But the need for such a balance somewhere will still exist unless we either all become Luddites or abolish copyrights completely. Neither is likely.

Re:The takedown notice system isn't inherently bad (1)

selven (1556643) | more than 4 years ago | (#30506934)

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.

Re:The takedown notice system isn't inherently bad (1)

JoshuaZ (1134087) | more than 4 years ago | (#30506996)

And you intend to define commercial in this context how? If for example you make a movie and I make thousands of copies and distribute them for free that's going to hurt your business quite a bit. Is that commercial or not in your system? If you are going to make a largescale exception it should be is something closer to the Lessig proposal (such as in his book Remix) where he suggests that we should emphasize that if content creation has occurred then it shouldn't be covered by prior copyright. Thus for example, under current copyright laws, if I set a video of clips from a TV show using a recorded song that's a violation of the copyright of the song. Under a Lessig type system that wouldn't be the case. But distinctions between commercial and non-commercial are either to ill-defined. They generally allow way too much copying or way too little. Moreover, they don't distinguish well when someone has taken good content and modified it extensively to the point where they should be able to benefit from it.

Re:The takedown notice system isn't inherently bad (1)

selven (1556643) | more than 4 years ago | (#30507220)

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 then what defines significant?

Re:The takedown notice system isn't inherently bad (1)

JoshuaZ (1134087) | more than 4 years ago | (#30507262)

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 effectively to Slashdot posts. The two most relevant books are Lessig's Free Culture and Remix.

Re:The takedown notice system isn't inherently bad (3, Informative)

BikeHelmet (1437881) | more than 4 years ago | (#30506932)

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:The takedown notice system isn't inherently bad (1)

michaelmalak (91262) | more than 4 years ago | (#30507060)

When Google was in the rocess of buying YouTube, people were saying it was going to be the death of Google since YouTube was a trove of pirated works. That was common sense. But you are right, the DMCA protects Google/YouTube, defying common sense. (It wasn't clear at the time to the public that YouTube could hide behind the DMCA; in fact, it was YouTube that ushered in that practice.) Of course, 90+ year coyrights also defy common sense. If we had 14+14 year copyrights again that stimulate rather than stifle the arts, the DMCA takedown system would be counterproductive.

Re:The takedown notice system isn't inherently bad (1)

kenshin33 (1694322) | more than 4 years ago | (#30507116)

ISP should have nothing to do with this ... (is postal service (carrier) responsible for the drugs/copied CD/DVDs they deliver ????)
notice and notice. where a fundamental constitutional/human right is respected (presumption of innocence). right holder says "hey you're infringing" and here's why.
burden of proof is not on the defendant!

Re:The takedown notice system isn't inherently bad (1)

billeeto (981533) | more than 4 years ago | (#30507224)

adding to the irony, some plaintiffs regret when a defendants' youtube video is actually taken down in response to a complaint, as it limits the damages.

Re:The takedown notice system isn't inherently bad (1)

davecb (6526) | more than 4 years ago | (#30507294)

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.

Penalty of Perjury (4, Informative)

Cbs228 (596164) | more than 4 years ago | (#30506664)

Under Section 512 of the DMCA, all requests must include

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (17 U.S.C. 512(c)(3) [cornell.edu] )

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 (1)

JoshuaZ (1134087) | more than 4 years ago | (#30506726)

Perjury requires that the claim was knowingly false. Sending these off when you have even minimal reason to think they are valid already makes that difficult. Sure, sometimes you might have an email saying "hahha. We'll use this bogus DMCA notice to get this content taken down even though we don't own it. Let's be all evil like that." But that's not going to happen very often.

Re:Penalty of Perjury (1)

dshadowwolf (1132457) | more than 4 years ago | (#30507268)

"Ignorance of the law is no defense"

Basically... this means that sending any invalid DMCA notice is, in fact, a violation of the law - regardless of what the person that sent it might have thought or believed at the time they did it.

Re:Penalty of Perjury (1)

JoshuaZ (1134087) | more than 4 years ago | (#30507354)

Not the way perjury works. Perjury specifically requires intent. See http://en.wikipedia.org/wiki/Perjury [wikipedia.org] . If it isn't knowingly false it isn't perjury. This is a good thing. We wouldn't want witnesses to be prosecuted for perjury everytime they testified to something they were mistaken about.

Re:Penalty of Perjury (1)

dshadowwolf (1132457) | more than 4 years ago | (#30507670)

That does not make my argument any less true. The argument was that claiming "but I thought it was valid" makes filing a false DMCA notice totally legal. If "but I didn't know it was illegal" made breaking the law okay, every criminal would do it.

And thinking about it, there is a well-defined range of DMCA notices that are perjury. Which just reinforces the widely held belief (I can't call it a fact as much as I'd love to) that the DMCA is a bad law. There is nothing that truly stops it from being mis-used - which, to me, would make it "unconstitutionally vague".

Re:Penalty of Perjury (1)

dbIII (701233) | more than 4 years ago | (#30507912)

Since the action is an automated blackmail bot it wouldn't be difficult to prove criminal intent. This really is demanding money with menaces for those notices where the recipient is threatened that they have to pay a "fine" or they will get taken to court.

Re:Penalty of Perjury (1, Informative)

Anonymous Coward | more than 4 years ago | (#30506732)

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.

Re:Penalty of Perjury (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30506906)

Why don't you actually read what you quoted?

The only part of a DMCA notice which is made under penalty of perjury is the statement that the sender is authorised to act on behalf of the copyright holder.

The claim of infringement isn't made under penalty of perjury (it cannot be, as it's a legal claim, not testimony).

Re:Penalty of Perjury (1)

SharpFang (651121) | more than 4 years ago | (#30507138)

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 distributing MS Office they own,

or are they disallowing me to distribute OOo, for which they have no copyrights?

Re:Penalty of Perjury (2, Interesting)

dshadowwolf (1132457) | more than 4 years ago | (#30507312)

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.

Re:Penalty of Perjury (0)

Anonymous Coward | more than 4 years ago | (#30507762)

Under Section 512 of the DMCA, all requests must include

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (17 U.S.C. 512(c)(3) [cornell.edu] )

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.

Right, so penalty of perjury if the complaining party is NOT authorized to act on behalf of the owner, or if the owner does not actually own an exclusive right. Nothing about the accuracy is reflected in that paragraph in regards to perjury.

Re:Penalty of Perjury (1)

Kjella (173770) | more than 4 years ago | (#30507868)

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.

slashdotted. cache (1)

lkcl (517947) | more than 4 years ago | (#30506752)

Little recourse?! (4, Informative)

ReallyEvilCanine (991886) | more than 4 years ago | (#30506768)

Filing a false notice is a fucking FELONY (17 USC 512). Call the police and press charges.

Re:Little recourse?! (2, Insightful)

Anonymous Coward | more than 4 years ago | (#30506978)

> 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 false report).

Re:Little recourse?! (1)

billeeto (981533) | more than 4 years ago | (#30507188)

Police: This is 911, how can we help you? DMCA False Takedown Victim: Hello office someone has taken down my guns n' roses video with a bogus DMCA notice. Police: OK calm down. Just keep it on the floor, don't move it. Is it breathing?

Re:Little recourse?! (1)

cheros (223479) | more than 4 years ago | (#30507734)

Police: "First, make sure it's dead."

BANG. "OK, it's dead. Now what?"

Re:Little recourse?! (1)

stuckinphp (1598797) | more than 4 years ago | (#30508054)

Rule Number 4

Re:Little recourse?! (1)

stimpleton (732392) | more than 4 years ago | (#30507684)

"Its a civil matter, Sir"

Re:Little recourse?! (1)

rhizome (115711) | more than 4 years ago | (#30507824)

"Its a civil matter, Sir"

There's no such thing as a civil felony.

Re:Little recourse?! (1)

dbIII (701233) | more than 4 years ago | (#30507954)

It's first class legislative judo. It looks like the law can be enforced and there are penalties but in practice they can't be prosecuted. Yet another reason why it should have never been passed.

informative TroolTroll (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#30507934)

Law as a tool to legitimise social control.... (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30508050)

Unfortunately law is now the tool with which the powerful interests legitimise their actions.

To a limited extent this has always been true. However, the corruption in the system is so widespread....

And now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt.

I'm too disheartened to write intelligently about this at the present time.

I left a career in the law when it became apparent that my own prominent success caused more problems than I could solve in practice. The more prominent my own achievements, and the better I practised, the greater veneer of fairness and legitimacy I gave to a corrupt system.

I would urge all lawyers to think carefully about their role in this system. With a very few exceptions, I think prominent and talented advocates do more damage than good working within this system.

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