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Are DMCA Abuses a Temporary or Permanent Problem?

CmdrTaco posted more than 7 years ago | from the still-on-the-books dept.

The Courts 163

Regular Slashdot contributor Bennett Haselton wrote in with a story about the DMCA. He starts "On January 16, a man named Guntram Graef who invoked the Digital Millennium Copyright Act to ask YouTube to remove a video of giant penises attacking his wife's avatar/character in the virtual community "Second Life", retracted the claim and stated that he now believes the video was not a copyright violation. (He had sent similar notices to BoingBoing and the Sydney Morning Herald just for posting screen shots of the video.) His statements in a C-Net interview suggest that he didn't mean to alienate the anti-censorship community and was probably angry over what he saw as a sexually explicit attack on his wife. But the event sparked renewed debate over the DMCA and what constitutes abuse of it. I sympathize with Graef and I admire him for admitting an error, but I still think the incident shows why the DMCA is a bad law." Hit that link below to read the rest of his story.

The DMCA is known mainly for its two most controversial provisions: the ban on technology to circumvent copyright restrictions, and the procedures by which ISPs must respond to "take down" notices if a third party claims that one of the ISP's users is violating their copyright. The first of these, I am opposed to in principle; the second, I am not opposed to in principle but I think is too easy to abuse in practice -- because I think incidents like the Graef case and my own limited court experience in related areas has suggested that the protections against DMCA-type abuses are very weak.

First, I'm against the anti-circumvention provision in principle because I agree with the position espoused by the EFF that computer code is protected under the First Amendment, even if some uses of that computer code may be illegal. After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was protected speech! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection. Just because X is illegal does not mean that tools or instructions for doing X should also be illegal.

With regard to the second provision, I'm not against requiring ISPs to take down infringing material on receipt of a notice from the copyright holder. But in practice there are two avenues for abuse here: (a) the party sending the take down notice can make statements that are not technically false, but which have the effect of persuading the ISP to take the material down, or (b) the party sending the take down notice can simply lie -- because the truth is that in too many cases, false statements made "under penalty of perjury" are not prosecuted, or even noticed, by the courts.

The EFF has already done a good job documenting abuses under the DMCA, and I'm not going to repeat all of that here. My argument is that these are not just temporary problems with a relatively new law, but rather that the abuses are the result of realities that won't change any time soon: ISPs being too busy to look closely at every complaint, and courts being too busy to go after everyone who violates court rules to get what they want. And thus it does no good to say that the DMCA would be fine if only enforcement actually got done properly instead of the ham-handed way it's been carried out so far, because that's not going to happen.

As I said, I think that if you have a bona fide case against a party, there's nothing wrong with taking action against them that would otherwise be considered a violation of their privacy and other rights. I've never sent a DMCA take down notice myself, but I've been involved in court cases in which I asked the judge to sign an order requiring a third party to turn over information about someone that was pertinent to the case. I don't consider that an abuse of the system, if the information you're after is relevant.

I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me... Later, in what will not come as a huge spoiler to my fellow male Seattle residents, she apparently decided that, being a non-overweight, non-single-Mom, non-sexually-repressed girl in a city full of rich single guys, she was under no obligation to pay me back, and said, "Go ahead and sue me". Anyone who knows about my sideline taking spammers to court would tell you, it is not a terrifically smart move to say to me, "Go ahead and sue me". So, since I was going to be at the courthouse for an upcoming case against a spammer, I figured, why not, and filled out a Small Claims form with the defendant's address listed as "to be determined", since all I had was her cell phone number. Then I asked the judge to sign an order asking T-Mobile to give me the rest of her information so I could serve the papers on her. The judge signed it, I mailed it off to T-Mobile, and three weeks later T-Mobile sent me a letter containing her address, where I had the papers served. Most people don't know it's possible to do this just in a case where someone owes you $100 and all you have is a phone number, but that's just because a lawyer would never bother with such a small case, and most non-lawyers don't know the option exists -- and of course, it also depends on the judge, who may or may not sign the order.

(In that vein, people always ask me, is that sort of thing really worth the time? In this case, since I was going to be at the courthouse anyway, the extra time to write the motion, get it signed, and mail it off, was less than 30 minutes. But I was mainly curious about whether or not it could be done, and how much privacy protection there really is under the law, and knowing that was worth more to me than the $100 anyway.)

So I don't think it's unethical to request such information if you have a genuine case against a party. But while I don't think that what I did constitutes abuse of the system, I think it clearly shows how the system could be abused. Nobody checked my ID when I filed the case or asked the judge to sign the subpoena; I could have been anybody, and I could have disappeared once I had the information. (I had T-Mobile mail it to my address, but I could have just as easily had them mail it to the court, and then gone down and asked to look at the court file.) DMCA opponents should be aware that even without the DMCA, privacy protections are not as great as most people probably think they are.

As a result, I'm especially nervous about laws that enable abuse based on copyright assertions, because almost all of the legal threats we've ever received at Peacefire were based on what I considered to be bogus "copyright" claims. In 1997 we published a program that you could run on any computer with CYBERsitter blocking software installed, and it would decrypt the file that stored CYBERsitter's "secret" blocked-site list, and print it out in plain text. The CEO of CYBERsitter claimed that we were "violating every intellectual property law ever written" and sent threatening notices to our ISP demanding that they remove the program. I argued that every byte of the decryption program was our original work, so it didn't violate their copyright. In fact, it didn't even enable violations of their copyright, because it didn't make it any easier for someone to distribute illegal copies of their program, and I also said the decryption program served a worthwhile purpose by allowing customers or potential customers to see what the program really blocked. (Although to me, the enabling issue and the "worthwhile purpose" issue were secondary to the primary point, that original works of computer code should be protected by the First Amendment.) Fortunately our ISP stood their ground, but if the DMCA had existed back then, CYBERsitter could have invoked it, and possibly the extra pressure might have caused our ISP to back down. (Blocked-site-decryption programs were originally exempt from the DMCA as a result of the decision of the Copyright Office, but that exemption was revoked in 2006 because nobody had written a new decryption program in three years.)

So that was an example of how a company could intimidate an ISP into taking down material, without technically lying about the situation, but tacking on the words "copyright violation" and hoping the ISP would capitulate. What about cases where the sender of a DMCA take down notice just lies?

The Dutch activist group Bits Of Freedom conducted an experiment in 2004, in which they signed up with 10 different ISPs and posted a copy of a work that was clearly labeled with a notice that the author had died 100 years ago and the copyright had expired. Then they sent fake "complaints" to all 10 ISPs from an anonymous Hotmail address. 7 of the 10 ISPs removed the content immediately, and one even replied to give the personal details of the account holder, without being asked to do so. So completely fictitious complaints do apparently work. The DMCA does more protection than that because it requires the complainer to make a copyright claim "under penalty of perjury". But how much assurance does that really provide?

No one has yet tried to get our site shut down with a copyright claim or other accusation that was simply made up out of whole cloth. But my experiences in other areas have left me without much confidence in statements that are made "under penalty of perjury". The times I've been to court against spammers, I usually get to watch a few other Small Claims cases being tried. Probably at least once every time that I've been there, it's come to light that some party in a case said something that they almost certainly knew was not true, and I've never seen a judge do anything about it -- and court employees who have been there much longer have said they've never seen it happen either. (Judges are far more likely to get upset about people speaking out of turn. It's OK to lie, as long as you do it while the judge isn't talking!) It's true that Small Claims court is for resolving small matters, but lying under oath in Small Claims court is still a felony, punishable at least in theory by up to 10 years in jail. (And in any case, lawyers have told me that even in higher-level courtrooms, most false statements don't get anyone in big trouble. High-profile cases like Martha Stewart are the exception.) I don't think that everyone who lies under oath should go to the big house for 10 years. But I have no faith in the DMCA just because it requires accusatory statements to be made "under penalty of perjury", when judges usually let false statements under oath go completely unnoticed.

I doubt that a lawyer would risk their career and even their freedom to make up a completely fraudulent DMCA claim against us, such as claiming a page on our site was a ripoff of something originally produced by their client. But I don't think it's out of the realm if possibility that a lawyer would claim that, for example, a parody of one of their logos that appeared on our site, was a "copyright violation" -- even though the company would almost certainly be advised by their lawyer that such parodies are protected speech, which means their statement would constitute perjury, but it would probably never be punished.

The low point of my own confidence in the enforcement of anti-perjury laws, came when I sued a spammer who appeared in court and claimed that he had absolutely no knowledge of the spam being sent, and had never accepted any orders for spamming of any kind, while the judge, who appeared to hate anti-spam cases even more than most judges did, kept haranguing me for suing a clearly "innocent" person. I then played a recording of a conversation that I had with the spammer over the phone, pretending to be an interested customer (with a disclaimer played at the beginning of the call saying that it could be recorded, in order to make the taping legal), in which he said, among other things:

"I mean, we have all their information to back up any email we send them. If we have their ISP information, we can prove that they've given it out, because you can't get someone's ISP unless they've given it to somebody." [sic -- he meant "get someone's e-mail address", although the statement is still wrong]

"Do you already have your creatives and everything? So I've just got to upload what you have and just blast it out?" [note: "creatives" are copies of ads that sent out for you by advertisers and spammers]

"It's a United-States-based company but they pump everything through China and then it comes back to the United States."

The judge appeared very flustered at that point and started accusing me of "entrapment" (which was backwards -- I'd never heard of the spammer until he spammed me first, and then I called him afterwards, just to get evidence that he was in the spamming business in case he showed up in court and denied it). Since she claimed it was entrapment, I still lost and the spammer walked out home-free, without the judge ever even commenting on the questionable veracity of the statements he had made at the beginning. And that is all the protection that exists in the real world against people making false statements "under penalty of perjury".

The point is that when reading the wording of a proposed law, there's a temptation to think that the scenario described is exactly how the law will play out when it's enforced (see the "Alice, Bob and Charlie" scenario in the Wikipedia entry on the relevant section of the DMCA), and that anyone who deviates from the rules will be punished. But my narrow experience in court, in an area unrelated to the DMCA, taught me some things that several lawyers, with sad smiles, have confirmed to be true throughout the law: (a) judges will do what they want; (b) even if judges do sincerely want to follow the law, they're unlikely to agree on what it says; and (c) courts don't have the will or the time to chase down every person who violates the rules.

Don't judge a law by what it says will happen. Judge it by how it will play out if more than half of the steps in the process get screwed up. Guntram Graef apparently wasn't even trying to do anything dishonest when he got a video removed from YouTube on the basis of copyright claims that turned out not to be valid. Imagine how much abuse is possible when you're gaming the system on purpose.

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first giant post (-1, Troll)

Anonymous Coward | more than 7 years ago | (#17737818)


Big article. (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#17737820)

Still reading it, huh?

Didn't RTFS and proud of it (0, Offtopic)

Just Some Guy (3352) | more than 7 years ago | (#17737828)

Please include a link to any lengthy text so I can skip it without feeling guilty next time.

On-topic: all else aside, it's pretty big of Graef to retract his position. I'd be pretty furious if someone harassed my wife regardless of what she was doing at the time, and probably wouldn't be thinking very clearly immediately afterward. I respect the fact that he was willing to work through that and come to a more reasoned view.

Then you're a dumbass... (2, Informative)

mrchaotica (681592) | more than 7 years ago | (#17738140)

...because the text "below the fold" (in newspaper-speak) was by far the most interesting part of the summary.

Re:Then you're a dumbass... (1)

ShieldW0lf (601553) | more than 7 years ago | (#17739058)

The DMCA shouldn't have been invoked here. It's not applicable.

BUT everyone here knows that whoever put that video out there was engaging in an attack on that woman, and they should be taken to task for it. I personally would be in favour of having them publicly flogged for doing this.

One of the pillars of a healthy society is freedom. Another is respect. Neither is less important than the other.

Re:Then you're a dumbass... (1)

mrchaotica (681592) | more than 7 years ago | (#17739376)

I personally would be in favour of having them publicly flogged for doing this.

What, you mean publicly flogged by virtual giant penises?

Re:Then you're a dumbass... (0)

ShieldW0lf (601553) | more than 7 years ago | (#17739878)

No, I was more thinking the way it's done in Asia. Publicly, with sticks.

Re:Then you're a dumbass... (1)

spun (1352) | more than 7 years ago | (#17740084)

Vengeance is a base motivation, not worthy of civilzed humans. It is not a useful course of action, unfortunately, anti-social types rarely think of the consequences before performing anti-social acts. Behavioral psychology has shown punishment in general is innefficient at inhibiting undesired behaviors. Inflicting pain on another human being degrades the sense of empathy of any who take part in or witness the act, making it that much easier for them to inflict pain int he future. The logical, rational, thinking part of the human mind shuts down when experiencing strong and violent emotions, such as pain or revenge. This is not something we should be encouraging.

Re:Then you're a dumbass... (1)

MollyB (162595) | more than 7 years ago | (#17740864)

Your comment is remarkably reasoned and rational, but it starts with the assumption that the corporal punishment the GP/OP was suggesting is considered "vengange" in the Asian countries in which caning (whipping with bamboo) exists. I suggest it is employed largely for deterrence in those cases. Its effectiveness is beyond the scope of this post.

I wholly agree no encoouragement is needed for violence or the infliction of pain. We (as a species) seem capable of it without persuasion.

who's a dumbass... (0)

Anonymous Coward | more than 7 years ago | (#17740954)

Five previews and I still missed "vengeance". Hate that...

Re:Then you're a dumbass... (1)

spun (1352) | more than 7 years ago | (#17741220)

As I said, it is my belief that anti-social types do not consider the consequences of their actions before commiting them. I have serious doubts that caning or other forms of punishment have deterred anyone. Criminals don't tend to be people who think ahead much.

Dumbass? (1, Insightful)

node 3 (115640) | more than 7 years ago | (#17740650)

Not reading something doesn't make you a dumbass. I didn't read it either--not because I didn't expect it to be more interesting than the "above the fold" part, but because I'm not interested enough to read it to begin with. If I were to completely read every story on every page I open today, I'd be done sometime tomorrow, already making behind for *that* day's collection of stories, and so on.

You gotta pick and choose what to spend your time on. Don't tell me *you* don't do the same.

If not completely reading a webpage makes one a dumbass, then who here isn't?

Re:Didn't RTFS and proud of it (0)

Anonymous Coward | more than 7 years ago | (#17739838)

"I'd be pretty furious if someone harassed my wife" ...

Me too unless my wife was obviously being a twat ... oh wait!

Re:Didn't RTFS and proud of it (1)

Just Some Guy (3352) | more than 7 years ago | (#17739912)

Me too unless my wife was obviously being a twat ... oh wait!

No, even then she's still my wife. I might have a "what the hell were you thinking?" chat later in private, but there's no way I'd just stand by idly while someone gave her trouble, deserved or not.

Re:Didn't RTFS and proud of it (0)

Anonymous Coward | more than 7 years ago | (#17741174)

Nobody harassed his wife. They made a little harassment script to play against a character in an online computer game.

That would be like... (3, Funny)

otacon (445694) | more than 7 years ago | (#17737856)

That would be like me getting pissed and taking legal action because I was in someone's counter-strike highlight video getting 'pwned'

Re:That would be like... (1)

$RANDOMLUSER (804576) | more than 7 years ago | (#17737948)

Or like getting flamed on USENET. It hardly deserves a thermonuclear response.

Re:That would be like... (0)

Anonymous Coward | more than 7 years ago | (#17738128)

That would be like me getting pissed and taking legal action because I was in someone's counter-strike highlight video getting 'pwned'
Not even close. You're obviously not married.

Re:That would be like... (2, Informative)

otacon (445694) | more than 7 years ago | (#17738290)

Just because marriage clouds your logic doesn't mean my analogy isn't logical...sure it's not the same on an emotional level, but it is the same in the fact that neither one involved real life encounters, just digital in GAME representations of a player.

Re:That would be like... (0)

Anonymous Coward | more than 7 years ago | (#17738494)

While I appreciate your attempt at level headed logic and I understand the analogy you are trying to make, there are some important differences here (yes, somewhat emotionally tied,) that need to be pointed out. First, the event in question was, for all intents and purposes, sexual harassment targeted at a specific individual so as to cause embarrassment. Furthermore, the harassment in question is out of character with what one might consider normal behavior within the game. People get "pwned" all the time in first person shooters. However, flying penises attacking individuals can hardly hardly be considered the norm in Second Life and is not the reason people join the game.

Second, note that this video was not just a clip from someones highlight video. Again, it was a premeditated attack designed to embarrass a specific individual for who knows what reasons.

And finally, different from your analogy, note that this was the woman's husband making a complaint, not the woman herself.

p.s. Don't think that marriage is clouding my reasoning. I am not married and don't intend on becoming married with any expediency.

Re:That would be like... (1)

otacon (445694) | more than 7 years ago | (#17738684)

I understand what you are saying, and I don't disagree with you. I think it's sick that someone would premeditate something like that. At the same time both my analogy and her experience didn't REALLY happen, they are both virtual. One more upsetting than the other. But if someone were allowed to file a DMCA complaint like that, then why wouldn't I be able to, where do you draw the line? I know they aren't the SAME thing, but from a technology perspective they are the same thing, and that was solely my point.

Re:That would be like... (0)

Anonymous Coward | more than 7 years ago | (#17738784)

I don't agree with a DMCA suit, you're right. I also don't believe that the video should be required to be taken down. In an ideal world, I don't even believe there should be a good case for legal action, (though, in reality, there may be a case under harassment laws.) I am simply pointing out that comparing this incident with getting killed in a first person shooter is not a good analogy.

Also, I don't feeling like stating that these events "didn't REALLY happen" is dangerously flawed. Just because no physical objects were involved doesn't mean they didn't happen. If is type something into a video game chat window, such as an insult, does that mean I didn't really insult you? This incident is exactly that - an insult - virtual or not.

Re:That would be like... (1)

Achromatic1978 (916097) | more than 7 years ago | (#17740534)

However, flying penises attacking individuals can hardly hardly be considered the norm in Second Life and is not the reason people join the game.

From what I've heard and seen, it might not be the norm, but it's not altogether unexpected either. Hell, the single biggest traded item on SL is... da-da-da... SEX. Cyber, virtual, phone, you name it.

Re:That would be like... (1)

DarthChris (960471) | more than 7 years ago | (#17738300)

I don't think that is a good comparison. It seems to me that the people who made the video knew it was a female player - would they have made it if they didn't explicitly know that? If the description is correct, it could easily be viewed as sexist both ways (aside, too many people forget discrimination works both ways).

Secondly, if you play Counter-Strike, you know there's a fair chance of getting 'pwned'. There's not a fair chance of someone making a sexually explicit video that has no relevance to the game, because most people would view it as, well, pointless, and probably in bad taste. As TFS points out, that's probably the real reason this guy acted.

I'm not saying you can't make fun of people - but, unless it's a public figure, it's unfair to do it so explicitly to someone you don't know. (If this guy knew whoever made the video, he could have simply asked them to remove it directly.)

Re:That would be like... (1)

Thexare Blademoon (1010891) | more than 7 years ago | (#17738808)

But given the amount of freedom in second life, and the "normal person + total anonymity = total fucktard" equation... how in the nine hells do you not expect shit like this to happen? I'm honestly surprised it doesn't happen more often.

Re:That would be like... (0)

Anonymous Coward | more than 7 years ago | (#17738926)

It only doesn't because the SL mods are rather ban-happy and impose 'machine' bans based on the MAC and HDD serial number. There are semi-organised trolling groups but like FPS griefing it requires some technical sophistication, e.g. injecting code into the client to circumvent bans.

Re:That would be like... (1)

Tony Hoyle (11698) | more than 7 years ago | (#17739594)

Floating animated penises are 'sexually explicit'? Huh?

They're about as 'explicit' as a carry-on film. You'd have to be really sheltered to be remotely shocked.

Re:That would be like... (0)

Anonymous Coward | more than 7 years ago | (#17740078)

explicit does not mean 'something that shocks'. it means 'explicit'.

DMCA is wrong anyway (1)

guruevi (827432) | more than 7 years ago | (#17737866)

I'm just waiting until it gets overturned by a judge. I would go to court until the end if somebody invokes it against me.

We're all waiting (3, Interesting)

Mateo_LeFou (859634) | more than 7 years ago | (#17738026)

I remember Eben Moglen at a panel called "The DMCA and You" confidently asserting that the circumvention clause would be stuck down soon because it so obviously did not fit in with a free society.
audio, partial transcript []

Re:We're all waiting (2, Insightful)

Hatta (162192) | more than 7 years ago | (#17740888)

I remember Eben Moglen at a panel called "The DMCA and You" confidently asserting that the circumvention clause would be stuck down soon because it so obviously did not fit in with a free society.

Holy cow, is he that naive? Drug prohibition obviously does not fit in with a free society either, and we've been stuck with it for decades. It's at the point where anyone who honestly assesses the world around them has to admit we don't live in a free society.

"They would be giants" is wrong anyway (2, Funny)

Anonymous Coward | more than 7 years ago | (#17738080)

Yes, we all should fight for the right to be beaten up by a giant penis.

I play second life ... (2, Funny)

ZOMFF (1011277) | more than 7 years ago | (#17737868)

because my real life doesn't have enough scams or giant penises after my female counterpart.

So for the 100$... (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#17737882)

Did she put out? Because that would have been even better to take her to court if she did... that IS justice.

Abuse me! (0)

Anonymous Coward | more than 7 years ago | (#17737898)

"but I still think the incident shows why the DMCA is a bad law."

Then by that reasoning, all laws are bad because they can be abused.

If you're saying (0)

Anonymous Coward | more than 7 years ago | (#17738002)

we should live without the rule of law, I for one would have to disagree.

Re:Abuse me! (2, Insightful)

joshetc (955226) | more than 7 years ago | (#17738032)

The DMCA is almost ALWAYS being abused. If you buy something it should be yours to do whatever you choose with. It would be similar to there being a law stating you cannot use McDonald's Mayo on a Double Whopper as it was not intended to be used that way.

Re:Abuse me! (0, Flamebait)

heinousjay (683506) | more than 7 years ago | (#17738280)

Exactly. Free entertainment is our moral right. Let our just brothers and sisters who wish to distribute other people's protected works for their own personal gain triumph! In a free society, everyone should have the right to take whatever they wish from others so that they can be as happy as clams. Clams with giant DVD collections they didn't need to pay for.

How about a little fire, Scarecrow? (1)

HTH NE1 (675604) | more than 7 years ago | (#17740268)

Clams with giant DVD collections they didn't need to pay for.

No, happy clams with DVD collections twice as big as what they paid for, because the second half is made up entirely of backup copies of the first, not needing to buy new copies due to cracks working their way out from the hub or the edges separating causing playback to stop at the layer change.

And maybe a few remixes in one's own private library not for showing in a paid nand/nor public venue.

I'll add what the GP surely meant to imply: "If you buy something it should be yours to do whatever you choose with" in private.

And I'll volunteer that loaning out your backup should be fair use as much as it is with loaning out the original, so long as the two aren't in simultaneous use. Failure to return a loaned backup would be theft only on the part of the person failing to return it, and I should be entitled to make another copy to replace it in cases of theft or damage. And same should be true for loaning out a remix. If the person you loan to starts making copies, doesn't return it, or makes paid or public performances of it, that should be his crime.

Re:Abuse me! (1)

TheJasper (1031512) | more than 7 years ago | (#17738406)

So you write a program, I buy it and now I can sell it to anyone I want?

So you write a song, I buy a recording and now I can sell it to anyone I want?

So you write a book...

Even more, I could claim all aforementioned work as my own, since you just said I can do anything with it I want.

Information is really easy to copy and it's difficult to say where the line is, but surely authors/composers/programmers have some rights to be compensated for their work. The question is how to implement it. I don't copy illegally (there may be some exceptions vis a vis abandonware) but I don't agree with the current definition of what is or isn't legal. I still try to stay on the right side of the law, while arguing for change, but that's beside the point. The point being you can't and shouldn't be allowed to do anything with something you've bought. You shouldn't be allowed to commit perjury, and you probably should compensate the original creator for their effort. I agree the DMCA is bs, but there is a need to create a viable system.

Re:Abuse me! (1)

joshetc (955226) | more than 7 years ago | (#17738694)

DMCA barely defines copyright law any more than it already was. One huge thing the DMCA basically says is that if I buy a song for "A" and want to play it on "B" but they don't want me to, I am out of luck. That is the problem I and many others have with it.

Maybe I wasn't specific enough with my want to do what I choose with something that is mine. Another example is that it is technically against the DMCA to run Linux on my xbox 360. What a crock of shit. The point is that even before the DMCA it was illegal to distribute copies of the latest Britney Spears song, now it's illegal to play it in my car provided Britney has told me I'm not allowed to.

Re:Abuse me! (5, Informative)

Karzz1 (306015) | more than 7 years ago | (#17738816)

"So you write a program, I buy it and now I can sell it to anyone I want?"

If you uninstall the software from your machine and remove all copies other than the original you should have every right to sell the original. Notice I did not say make copies of the original and sell those. For instance, I buy a new computer game, FooBar Fighters, and I play the game. Once I am done I should be able to sell the game to a friend (after removing all local copies). I should also be able to make a backup of the software in event that I intend to keep it, *regardless* of encryption or whatever other lame "anti-piracy" copy "protection" is on the original media.

"So you write a song, I buy a recording and now I can sell it to anyone I want?"

This is the exact same argument as the previous, and my answer is the same. You *do* have a right to resell CDs (the RIAA has made a few attempts to make this illegal). Why not your digital music?

My point is that by buying copyrighted material you should have resell rights of what you bought and you should be able to make backups of what you bought in event that the original media is damaged. For these reasons I think the DMCA is a bad law. It attempts to do in law what technical measures have not been able to do.

Re:Abuse me! (1)

KDR_11k (778916) | more than 7 years ago | (#17739450)

A big issue with that kind of resale is that you can be damn sure loads of assholes will keep their "backups" after selling or returning the original.

Re:Abuse me! (1)

HTH NE1 (675604) | more than 7 years ago | (#17739500)

It would be similar to there being a law stating you cannot use McDonald's Mayo on a Double Whopper as it was not intended to be used that way.

Still, if you walk into a McDonald's with a Double Whopper they can not only deny you any mayo packets, but also have you and your Double Whopper removed from the premises.

wife? attack of the giant penises? (0)

Anonymous Coward | more than 7 years ago | (#17737936)

I am so going to need to see that.

Link to the video in question (3, Informative)

Toby_Tyke (797359) | more than 7 years ago | (#17738636)

The link I'm sure everyone will want: []

Re:Link to the video in question (1)

sodul (833177) | more than 7 years ago | (#17740118)

Don't bother clicking on the link, the video was removed.

Re:Link to the video in question (1)

PriceIke (751512) | more than 7 years ago | (#17741110)

Video has not been removed. It's just totally bizarre. Don't bother clicking it if you think it's in any way sexual .. it's just ... weird.

It's definitely about the character sitting in the chair so I can see why this guy would be upset .. but seeing as how it's not anything but bizzare/stupid I don't see why he felt the need to take any action whatsoever beyond shaking his head and muttering "fucking whackos" or something.

Put back... (3, Informative)

PatHMV (701344) | more than 7 years ago | (#17737976)

You seem to be overlooking the put back provisions of the DMCA. The guy who posted the video of the penises attacking the wife's avatar could have just certified to YouTube that the material was non-infringing, and then YouTube under the DMCA would have left the video up (barring any TOS violations), leaving the 2 parties to fight it out amongst themselves in court... with the video remaining up until ordered removed by a court. I am wholeheartedly opposed to the anti-circumvention provisions of the DMCA, but the take-down notice system it created seems to me to strike just the right balance.

Re:Put back... (1)

ZachPruckowski (918562) | more than 7 years ago | (#17738050)

Except that doing that is the legal equivalent of walking up to a dragon, dropping your pants, and pissing at it. You give a giant dragon (hungry lawyers) the right/ability to come after you.

Not to mention that generally the people making the DMCA takedown request have a lot more power/time/money available.

These are the 3 problems with DMCA take down (1, Interesting)

Anonymous Coward | more than 7 years ago | (#17738654)

"The guy who posted the video of the penises attacking the wife's avatar could have just certified to YouTube that the material was non-infringing"

Oh, but it might be infringing, but the guy making the claim doesn't own the copyright.

This is the problem with the DMCA take down notice:
1. It can be issued to parties with no contract with the alleged infringer. e.g. Search engines, and so they have no way to contact the alleged infringer to get his side of it.

2. It contains a presumption of copyright ownership, the person making the claim only has to say he has the copyright without giving any evidence that he actually owns the copyright. So the ISP can't refute it on the grounds that the claim is bogus.

3. By default the DMCA claimant has won, the material is removed. The person posting it has no way of proving that the claimant doesn't actually own the copyright, and would have to sue to find out. So any plausible trickster wins a DMCA complaint.

They should:

1. Restrict DMCA notices to ISPs with a direct financial benefit from the infringement.
2. Require proof of copyright ownership as part of a DMCA notice.
3. Allow the ISP to challenge the proof of copyright ownership if it looks fishy without losing their ISP common carrier let out.

Takedown = ten days of censorship (4, Insightful)

ChaosDiscord (4913) | more than 7 years ago | (#17739896)

The guy who posted the video of the penises attacking the wife's avatar could have just certified to YouTube that the material was non-infringing, and then YouTube under the DMCA would have left the video up...


Check section 512 yourself [] . (Direct link to section 512 that might work [] .)

There are two key parts: c.1.A.iii: The service provider "upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;". The legal content must be taken down "expeditiously." No window of opportunity is allowed in which to contact the person who posted it. Then g.2.B and C: "upon receipt of a counter notification described in paragraph [the service provider] ... replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice."

Anyone willing to tell a lie can silence your online speech for ten days.

There is no trial, not even a judge's review. Even if your ISP wanted to, they can't put the content up faster than than ten day (at least, not without losing the safe harbor provisions). That's assuming you promptly file the counter notification. You can bring charges that the third party lied, but it's hard to prove when they claim "Oops, I guess we were wrong." Ten days might not seem like much, but it might get a company past an initial news rush. A number of companies have used the ten day window to illegally silence leaks of sale prices on "Black Friday" until the day had passed. []

The take down notice system is, at its core, a good idea. I've even filed take down requests. However, it is not a good balance. It amounts to suppression of speech. If you're going to supress speech, you need a much higher standard than some random person's claims. The reason you can be silenced for 10 days is to give the original claimant time to file an infringement suit against you. Why does the claimant get such a window, but the person whose speech is being suppressed doesn't? A more fair balance would be that upon receipt of notification, a sevice provider needs to make a reasonable effort to contact the poster. If the poster fails to provide counter-notice within ten days, then the content gets yanked.

I envy the judge (3, Funny)

EveryNickIsTaken (1054794) | more than 7 years ago | (#17738012)

I'd have to envy the judge overseeing this case.. "Yes, your honor. They made a video of giant penises bludgeoning a digital representation of my wife." Now THAT is what I want to watch on CourtTV.

Re:I envy the judge (1, Funny)

Anonymous Coward | more than 7 years ago | (#17738114)

Does this story also mean we will see a "giant cock" tag available for future stories?

Maybe /. can also create a related icon that can be used for all those mindless Dvorak rant articles as well?

YouTube DMCA Abuse (5, Interesting)

Kiaser Wilhelm II (902309) | more than 7 years ago | (#17738030)

I have several videos on YouTube that are short clips ( 15 seconds) edited in such a way to be a parody and satire of the original work. YouTube keeps taking them down because they said they got a DMCA letter from the content producer.

I've read the law and consulted copyright professionals - everything is in my favor for having fair use rights to make these videos. These guys who are sending out DMCA notices are just being bullies because they know they can shut out little guys without much fear of a counter-DMCA lawsuit for making false claims.

I literally had to put a warning on all my videos to tell these people exactly what the LAW states and that I will use my rights under 512(f) to obtain civil remedies against anyone who makes false claims. So far, my material has been up for several months since without being pulled. Coincidence?

Re:YouTube DMCA Abuse (2, Informative)

maxume (22995) | more than 7 years ago | (#17738314)

What you are talking about is certainly DMCA abuse, but note that unless they have made some promise to you that says otherwise, YouTube has no obligation to do anything in your defense.

The terms of service pretty much say it isn't their fault if viewing their site blows up your computer, so I doubt they promised to defend your works.

Re:YouTube DMCA Abuse (1)

Kiaser Wilhelm II (902309) | more than 7 years ago | (#17738768)

I know they don't. YouTube could just as well say "No" without a reason.

The point is that YouTube is being served with sworn DMCA violation notices from content owners that they are legally obliged to follow.

If you read my post more carefully, you would see that I was talking about how the content producers are being bullies with the DMCA notices knowing that the "little guy" is not likely to file a lawsuit to claim damages under 17 USC 512(f). YouTube is just doing what they are required to do. My warning is a warning to the people generating DMCA letters without regards to content being in violation or not.

Re:YouTube DMCA Abuse (1)

maxume (22995) | more than 7 years ago | (#17739288)

That's pretty much how I read you comment, I was just chiming in to counter the inevitable confusion that leads people(not you...) to believe that a free service 'owes' them something.

As an aside, has anybody successfully argued 512(f) in a similar case(i.e. demonstrated actual damages from denial of a free service), or are you using bluster to good effect?

Re:YouTube DMCA Abuse (1)

stinerman (812158) | more than 7 years ago | (#17739986)

As an aside, has anybody successfully argued 512(f) in a similar case(i.e. demonstrated actual damages from denial of a free service)

I highly doubt it. The idea is that if you believe your work is non-infringing, you can send a counter notice and the work will stay posted for all to see. At this point, your accuser must file in civil court against you. That proceeding will determine if the work is infringing on a copyright, is a fair use, etc.

The problem is that no one in their right mind is going to risk a costly court battle over something as trivial as posting a clip of Family Guy to Youtube. Even if it is obvious fair use, the copyright holder (most likely a corporation) has nearly unlimited funds in order to make your life hell by dragging out the trial for years in order to get you to take down the offending work.

Re:YouTube DMCA Abuse (1)

maxume (22995) | more than 7 years ago | (#17740418)

The counter notice is 512(g). 512(f) provides for civil penalties for filing a take down notice for something that you do not believe to be infringement(or for falsely defending an infringing work).

Re:YouTube DMCA Abuse (1)

stinerman (812158) | more than 7 years ago | (#17740504)

Either way, thanks for clearing up the difference. I was careless and didn't actually check all of 512.

Re:YouTube DMCA Abuse (1)

maxume (22995) | more than 7 years ago | (#17740454)

Never mind previous, read to quick...

link to the video (5, Informative)

1u3hr (530656) | more than 7 years ago | (#17738084)

How can you not provide a link to the actual video in question [] ? I wasted 5 minutes digging this up....

Re:link to the video (0)

neomunk (913773) | more than 7 years ago | (#17739074)

Whoa! I knew there were flying penises involved, but actual penetration?!? She had as many cocks in her as a typical slashdot discussion mentioning Bush anywhere in the article.

Re:link to the video (0)

Anonymous Coward | more than 7 years ago | (#17739962)

Whoa! I knew there were flying penises involved, but actual penetration?!? She had as many cocks in her as a typical slashdot discussion mentioning Bush anywhere in the article.
I think the phrase you are looking for is 'if she had as many dicks sticking out of her as she had stuck in her she would look like a porcupine.' In all seriousness though, it was a crappy made video by what must have been a 12 year old. Its definitely 00:02:16 of my life that I will never get back.

What I want to know... (3, Interesting)

PingSpike (947548) | more than 7 years ago | (#17738136) did the submitter get his $100 back from that woman?

Re:What I want to know... (1)

Rob T Firefly (844560) | more than 7 years ago | (#17738178)

And will he ever have another date? The pissed-off graffiti about him probably takes up all four walls of the ladies' room now.

Re:What I want to know... (1)

SatanicPuppy (611928) | more than 7 years ago | (#17738740)

Psssh. In my experience, females who don't abuse their relationships with men are as bitter about women who do as men are.

It's like when you see a really cool girl, and she's dating a guy who's cheating on her, and when they break up she does something that makes him look like a dickhead...Does that make you want to date her less, or more? She's within her rights to get some of her own back, same as this guy is within his rights to sue the girl who walked off with his hundred bucks.

And generally, while putting the beatdown on people who are using you doesn't endear you to people who want to use you, it does endear you to people who feel like the users always get a free ride, and they're the ones you want to be dating anyway.

Re:What I want to know... (1)

sconeu (64226) | more than 7 years ago | (#17738972)

Did she agree in advance to buy her own ticket? Otherwise, if I invite someone to anything that requires a ticket, since I did the inviting, I expect to pay, unless otherwise previously agreed to.

Re:What I want to know... (2, Informative)

Jtheletter (686279) | more than 7 years ago | (#17740784)

Well, she didn't need to agree in advance of showing up, if at the time she had said she would pay him back then she's entered a verbal contract to do so. IANAL, but I doubt it gets much more straightforward than that (other than an actual written contract).

I'd love to hear the arguments on this one... (1)

Zeek40 (1017978) | more than 7 years ago | (#17738168)

Man i wish this would have gone to court, it would have quality entertainment. I know it's inaccurate, but from the headline i get a mental image of a man indignantly arguing in front of a judge that they had copyrighted the act of attacking their wife with penises, and it's just too funny to me.

Amazing what you can do if your "just kidding" (3, Insightful)

StressGuy (472374) | more than 7 years ago | (#17738194)

Good for Graef that he realized he was using the wrong tool to fight against what was happening to his wife. However, let's not forget that he has a right to be upset. I wonder if the people who made this video will also show they can be mature and take it down willingly? Somehow, I doubt it.

Believe it or not, there is such a thing as taking a joke too far. There's "edgy" and then there's hackneyed and juvenille. The subject of this video stikes me as high school level male "group think".

Re:Amazing what you can do if your "just kidding" (4, Insightful)

Bieeanda (961632) | more than 7 years ago | (#17738676)

I think it's less that he realized that he was using the wrong tool, and more that he was surprised that people called him on it. Anshe Chung Co/LLC/KFC/KMFDM/WTF is too used to working within the confines of Second Life, where the admins are more than willing to keep them happy. The outside world... much less so.

I don't really sympathise with him at all, on any level. Anshe Chung is not his wife. Anshe Chung does not resemble his wife in the slightest. The 'phlying phalanx of phalluses' attack was roughly the equivalent of an eight year old drawing a pointy-hatted stick-figure, labeling it 'Teechur' and adding lightning bolts flying toward it-- only in this case, it's Mrs. Graef drawing the caricature herself. His overreaction was on par with that same teacher seeking the young critic's expulsion because the drawing noted previously was a 'death threat'.

The attack was juvenile, certainly, but flying off the handle and trying to smother it was the worst thing that he could have possibly done.

Re:Amazing what you can do if your "just kidding" (1)

geekoid (135745) | more than 7 years ago | (#17738828)

BY your definition, there is a demographic that finds this funny.

Of course he will be upset, most people would. Just because someone is upset is no reason to feel like it needs to be taken down.

Re:Amazing what you can do if your "just kidding" (1)

AdamThor (995520) | more than 7 years ago | (#17739742)

"BY your definition, there is a demographic that finds this funny."

I kinda found it funny. 'WHEN PENISES ATTACK, THURSDAY ON FOX!' heheh

"his mind is not for rent, to god or government. - Rush, the musicians, not the fat tard."

hahaha You called rush a fat tard. That was funny too.

DCMA (4, Insightful)

shirizaki (994008) | more than 7 years ago | (#17738196)

It was a nice piece of paper pushed by the MPAA and RIAA during the 90s when people were really uneducated and saw that people were "sharing music without paying the artists." the courts could stop file sharing software because the people judgign and serving in jury's didn't have any knowledge on it, it was something that their kids did.

Now everyone knows that isn't the case anymore. People are more educated than back then, and they know of the RIAAs dirty deeds (uploading fake files, suing 10 year olds, using the same file sharing programs to find people) and they know what a Napster, torrent, itunes, and a Shareaza is. The DMCA stands, now, as a loose piece of paper with no sway either way and only serves to hamper the courts with lawsuits and injunctions that have swayed in the favor of the file sharing applications.

This article does state YouTube, but going through the DCMA, especially since it's been pretty much the losing tool of copyright holders, is almost useless if you have copyrighted content you didn't authorize posted on a website. I hope the guy mentioned relaized that just because you pick an icon in a virtual world doesn't mean you own it. It's up to the peoepl that own and operate second life to make the call.

I think we're entering a world where you can't pass off half-baked and ill conceived properties and expect to make hand over fist gobs of cash because you control every outlet of that property. The world is too small and too fast: release a CD, and the individual files are ready to be shared on the old P2P networks, the whole album is being ripped and uploaded to people across the world (albeit not instantly like some RIAA people would want you to think), and someone just bought it and ripped it to their iPod.

But I'm getting off topic. DMCA is a nostalgic piece of law that should be revoked in favor of newer wordings that either exclude actaul programs that could be used for piracy, or it needs to go afetr the individuals that misuses these programs. But in orde rto do that, the issue of "fair use" needs to be defined for music, video, and words. As long as the fiar use is determined by the studios and labels and is controleld based on their whims they can't expect to get fair treatment in the courts. Either have fair use defined and procecute people based on that, or don't define fair use and confuse peoepl on whether they actually own what they bought.

permanent (1)

mastershake_phd (1050150) | more than 7 years ago | (#17738216)

This is going to be a permanent problem as long as this law is on the books. Here in the US we dont repeal bad laws. We keep passing more thinking it will work this time. Anyway with all the stupid laws we have on the books, just try not to piss anyone off, police, lawyers, the rich, and prosecutors especially, and you'll be ok.

lets rephrase the question for an answer (1)

wardk (3037) | more than 7 years ago | (#17738222)

"Are RICO Abuses a Temporary or Permanent Problem?"

If you can answer that one, you have your DMCA answer

Re:lets rephrase the question for an answer (0)

Anonymous Coward | more than 7 years ago | (#17738846)

RICO abuses stopped when they tried it on a huge corporation (big tobaco). Well, stopped for corporations, they are still using it against regular people instead of kingpins.

You must have a wonderful love life (1)

Rix (54095) | more than 7 years ago | (#17738256)

If you sue all your dates afterwards. What, didn't she put out?

Prior art (0)

Anonymous Coward | more than 7 years ago | (#17738278)

Considering the human history, anything you can possibly think of that involves penises and your wife must surely be considered prior art.

The problem is the legal profession, I think (0, Redundant)

MikeRT (947531) | more than 7 years ago | (#17738292)

By now I think the Attorney General's comments on Habeus Corpus have been widely read, and remember, this guy was a member of the Texas Supreme Court. Here [] is another example of the lawyers and judges basically saying that the basic meaning of a phrase does not mean anything. The real problem in these cases and so many like them is that we have allowed our legal profession to become filled with addle-brained sophists who can make the word "is" mean "very well might be in theory" instead of what everyone knows it means.

The more I have looked at the DMCA, the less evil it strikes me. The real evil is how it is applied, which is why it needs to be revisited. It probably just needs clarification.

Interesting except for one little thing (3, Interesting)

oshkrozz (1051896) | more than 7 years ago | (#17738310)

Unless you are in law enforcement the Judge can't say what you did is entrapment even if it was. A private citizen is allowed to both obtain information illegally that will help a case or entrap another party to build their case. I think the judge might have tossed the case because you are not a lawyer, judges do that too.

On one of your topics (0, Offtopic)

HellYeahAutomaton (815542) | more than 7 years ago | (#17738316)

I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me

You caused your own grief here on so many levels.

1) "Inviting" and "meeting up for" are two different things. If you invite someone you should be expected to pay. Just because she "forgot her checkbook" is beside the point; she was rationalizing. I'm surprised you didn't just whip out a loan for her to sign and have a lawyer, witness, and notary on speed-dial. If you're too much of a tightwad, don't invite girls to $100 charity lunches.

2) Don't lend people money if you want to see it back.

3) If anyone here has been slighted pal, its her.

Absolutely, yes (3, Informative)

Weaselmancer (533834) | more than 7 years ago | (#17738378)

The legal machinery in this country will always expand upon any new law to the point of lunacy.

Currently the DCMA is being used as a way to stifle competition [] rather than its original intent of keeping content "safe", as well as other abuses. It's not different than how the Patriot Act is being used to bust drug dealers [] rather than combat terrorism.

As soon as the law sees a new tool, it will use it to the maximum. When you give them a hammer and tell them it's to pound nails, don't be surprised when they use it as a door opener.

For a really spooky read, do some Google work for forfeiture abuses. Here's a good place to start. []

(cough)pointless(cough) (1)

thegestetner (1055276) | more than 7 years ago | (#17738442)

There's little, if anything, that the DMCA has done that is truly beneficial; aside from line the pockets of media cartels. This is a waste of legal resources.

what it all boils down to (2, Insightful)

v1 (525388) | more than 7 years ago | (#17738518)

is that this is not a "good law". Good laws are carefully worded and carefully considered, so that even if you are trying to bend their meaning and abuse them, you cannot, because they are wored in such a way that they cannot possibly incriminate someome that does not break the spirit the law was written in.

Nowadays however, very few new laws are what I would call "good". They are wored loosely and are open to wide interpretation. The justification is usually that they don't want to create a loophole where a criminal could get away, and that surely no good law enforcement officer would abuse this power.

But we all know, if there is an opportunity for abuse, it will happen. Not some of the time, not most of the time, but each and every time. It's not a risk, it's a promise.

Good Laws are written such that a few guilty go free so that there is no risk that the innocent suffer. The DMCA is not a Good Law, it chooses to error on the side of incrimination.

Laws will always be "open to interpretation"... (1)

StressGuy (472374) | more than 7 years ago | (#17738576)

This is what ultimately feeds the legal industry.

To put it in a more Slashdot fashion, "Laws are digital, morality is analog".

Abuse Is Part Of The System (1)

blueZhift (652272) | more than 7 years ago | (#17738562)

Sadly, abuse of the system _is_ a part of the legal system, though no one official will admit that. As long as there are no real penalties for bringing bogus DMCA claims and no real penalties for ISPs to honor them, the abuse will continue because the claimants will get what they want. Unfortunately all laws have this feature, you can claim/sue for whatever you want. Until a court rules on the issue, it's generally all fair game. And there are plenty of lawyers, and others, who will take advantage of this legal lag time to get what they want. I suspect that only the penalty of death would put a full stop to this since fines are generally laughed off by large corporations and considered the cost of doing business.

Abuse or bad (1)

PadRacerExtreme (1006033) | more than 7 years ago | (#17738678)

I still think the incident shows why the DMCA is a bad law.

Is it a bad law or is the use of it being abused? There is a big difference between a law that is being applied incorrectly and a law that is just bad.

Bad example:
Say my company is a suit and tie place. And the powers that be enact a casual Friday rule. And I still show up in a suit and get in trouble. Is that because I violated the causal Friday rule (must were causal) or because the powers enforced it wrong (I didn't were causal even thought I was allowed)?

Re:Abuse or bad (1)

honkycat (249849) | more than 7 years ago | (#17739178)

Is it a bad law or is the use of it being abused? There is a big difference between a law that is being applied incorrectly and a law that is just bad.
IMO, a law that leaves itself open to easy abuse is just as bad a law as one that is inherently unjust. Laws need to recognize the limits of the justice system and not only accomplish their intended goal, but also minimize unintended consequences. Even if you believe the overall goals of the DMCA are laudable (I do not), I think there's a strong argument that it is far too easily abused and is still a bad law for that reason.

To give you a bad analogy of my own -- no matter how useful your program might be, if it's got a gaping buffer overflow bug waiting to be exploited, it's still a bad program.

"a video of giant penises" ? (1)

o'reor (581921) | more than 7 years ago | (#17738710)

Well I for one am glad that the DMCA is about circumvention, not circumcision !

Uh, dude... (1)

Otter (3800) | more than 7 years ago | (#17738978)

I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money.

A little basic etiquette here -- you invite her, you pay. Her "forgotten her checkbook" was just a polite way of saying "Hell, no, you cheapskate dork."

I suppose that when you live in a world of "a video of giant penises attacking his wife's avatar/character", suing your date for not paying half isn't that dysfunctional, but still...

Permanent (2, Insightful)

russotto (537200) | more than 7 years ago | (#17739198)

The law was intended to be abused, and the powerful groups behind it (many of whose names end in "AA") like it that way. The way it works is

1) Anyone can get anything they want taken down by invoking copyright
2) If you're fool enough to counter-notify, it's literally an invitation to be sued.
3) Even if you counter-notify, if they claim they're going to sue, they get to take it down again. Indefinitely. Even if they never actually sue. There's no real recourse here.
4) If they do sue, the takedown remains in place for the duration of the suit.

So the DMCA allows a private party to get the effect of both a temporary and a permanent restraining order without the formalities of actually making a prima facie case (let alone proving it). And because "copyright" is involved and because the DMCA doesn't actually require the information to be taken down but merely provides a major incentive (immunity from suit) to those who obey it, the First Amendment is bypassed.

The law should be found unconstitutional on its face, but the courts have pretty clearly indicated that they aren't going to do so.

Amazing... (1)

phulegart (997083) | more than 7 years ago | (#17739438)

So let's see. So many issues...

First off, let's address this little snippet...

"Just because X is illegal does not mean that tools or instructions for doing X should also be illegal."

So it should be completely legal to provide information on how to make a silencer for a handgun? What legal use is there for a silencer? It should be completely legal for me to be able to tell you that if you screw a woodscrew into the lead core of a Slugger shotgun shell, you now have an Armor Piercing Round that will go through body armor and plate steel? How about the legality of my telling everyone how they can build a landmine out of a tupperware bowl, gasoline, draino, a roofing nail, saran wrap and some miscellaneous debris for shrapnel? Shall I now go into detail about how to assemble those ingredients? You want to defend my rights to impart this information?

Because the DMCA *can* be abused, it is therefore something bad that should be gotten rid of? Does that mean that because you can pick up any newspaper and find cases where corner store cashiers have been found guilty of selling cigarettes or alcohol to underage individuals, that the laws for keeping underage individuals from purchasing these things should be gotten rid of? I mean, since there are people getting caught abusing the laws there must be even MORE cashiers and consumers abusing the laws... therefore by your argument the laws should be disposed of.

How about speeding? How many cops write people up for one mile an hour UNDER the limit that decides whether or not the speeder has to appear in court for the ticket (In RI for example, 15 miles an hour over the speed limit means you mandatorily have to appear in court, and the RI State Troopers are well known for giving breaks and writing up people for only going 14 miles an hour over.) There is abuse of the law. Both in the speeding, and the punishment. Should the laws regarding speeding be repealed then?

You are pointing out how since individuals abuse the laws, that they should escape punishment, and the laws themselves should be changed, rather than punish those who are abusing the laws even harder.

You are right that it was wrong that noone checked your ID when you got that girl's information and filed the paperwork against her. What did you do about it, to ensure that ID's were checked in the future? NOTHING! That makes you part of the problem, and not part of the solution.

Abuse?! (0)

Anonymous Coward | more than 7 years ago | (#17739586)

DMCA "abuse"? The DMCA itself is an abuse of the constitution. Calling this "DMCA abuse" is like calling robbing a store and shooting the owner "robbery abuse". It goes beyond what is normally done, but either way is wrong.

In answer to your question (1)

iminplaya (723125) | more than 7 years ago | (#17740050)

The abuse is as permanent as the the law itself. It's an abuseive law designed to be used this way, just like RICO and all IP law for that matter. These laws don't exist to provide "justice". They are there to protect the revenue stream of a particular interest. Just like small town speed traps.

Missing something? (1)

a42 (136563) | more than 7 years ago | (#17740222)

Maybe I'm missing something... but I seriously doubt if Vanessa Carlton and/or her publishing company, etc. gave their permission to use "A Thousand Miles" in a video of giant pink penises attacking some woman. Isn't that a copyright violation? (I can't see how that could possibly constitute "fair use.")

Also -- was that an actual picture of the woman in question, altered to show her holding a giant penis? Surely there has to be grounds for some sort of legal action there? While I agree that using the DMCA was probably a bad idea, I can't help but sympathize. I'm sure if my wife was the target of such an attack I'd be seriously upset and attempt to do just about anything I could about it.

Funny, If you know what Anshe was at first (1)

doomy (7461) | more than 7 years ago | (#17741012)

When Anshe Chung started SL, she was a in-game prostitute (ala Escort). I still have one of her early (well 2 years ago), note cards that listed all her prices [] .

Not only this, she was also an escort in the AC and SWG (where such things were against the ToS). I guess with a little of money people try to pretend their past does not exist. Interesting, her Wikipedia entry [] had massive edits that tried to erase her working girl years (from her).
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