Another Reason To Worry About DMCA Takedowns: Collateral Damage

from the the-weakest-link dept

In the wake of the DMCA takedown notice that forced Cryptome offline, the EFF is pointing out yet another massive in with the DMCA's notice-and-takedown setup: it leads to a ton of collateral damage in getting legitimate, authorized, non-infringing content blocked by overzealous takedowns. Obviously, there are lots of cases of false takedowns or where there's a fair use argument -- but even if we assume that (in this example) Microsoft's DMCA was justified, the fact that the entire site got forced offline should be seen as a major problem with the DMCA:
This illustrates a basic problem built into the DMCA safe harbors. Microsoft's notice targeted just one document. Network Solutions, however, couldn't take down that single document, so opted to take down the entire site. Thus, although Cryptome's beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome's posting was protected by the fair use doctrine). Because Network Solutions wasn't willing to take that small risk, a whole lot of speech was temporarily disappeared.
As the EFF notes, this happens because the notice and takedown process lets copyright holders go after "the weak link" by moving further and further upstream to find a player in the chain who will take down the content, even if it means taking down much more:
Copyright owners reach out to a "weak link," the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit--even if the service provider knows it will win--is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of "innocent bystander" customers.
The EFF also follows this up with a list of ways that upstream service providers should react to such DMCA notices, and suggests that customers seek out service providers who will follow that course of action. Of course, the better solution would be to fix the DMCA, but that doesn't seem likely any time soon.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    ECA (profile), Mar 10th, 2010 @ 8:52pm

    i THOUGHT,

    I thought there was ramifications of False Take down notices. Even small ones would help fight BACK.

    If there isnt, it would be great to have 1 Equal to 1/2 the damages being charged.
    At least when a notice came you could have a chance of gaining money insted of loosing it, ALWAYS.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      PaulT (profile), Mar 11th, 2010 @ 12:38am

      Re: i THOUGHT,

      As I understand it, false DMCA takedowns are classified as contempt of court, and can be prosecuted in court. However:

      1. A person has to be able to sue in the first place - difficult for some, especially if your livelihood is the website that was taken down.

      2. That doesn't help in cases like this. If the page faced with the takedown notice was indeed a violation, that doesn't help the rest of the pages on that site. The owner may have no comeback if their entire website was taken down over a valid claim on a single page.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    ant anti mike, Mar 10th, 2010 @ 8:54pm

    solution

    lets say hosting normally costs the host 50$ a month and say they have 10000 hosts
    all they ned do is build in an indemity for 2$ per host and tha has a monthly of 20000$
    should it not be needed it goes into a fund and if none is over used , half goes back the the hosts and half goes the rest to whatever law firm yuo keep on retainer.
    IM sure there is a legal firm willing to setup stuff like that UPSTREAM
    and network solutions has no excuse as htey already have TONS a lawyers

    this is a joke is all they just roled over cause they could
    what otehr excuse is there

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    ECA (profile), Mar 10th, 2010 @ 8:55pm

    I also believe

    That all corps should release all INFO after 1 year.
    BECOME totally transparent.

    The only secrets that you want to keep, are those that would harm others.
    If you are being Fair and JUST, you shouldnt have many secrets.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      The Mighty Buzzard, Mar 10th, 2010 @ 11:13pm

      Re: I also believe

      I'm curious. What special attribute do you have that makes you think you deserve to know anything you want to know? Or is it that you're simply part of the entitlement generation and think you deserve anything you want?

      People, and corporations, keeps secrets for almost as many reasons as there are secrets. They pay their taxes just like you do (at least in theory), they pay their rent, they pay their utilities, and they pay their traffic fines. They do this because they legitimately owed that money. You they owe nothing.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        John Fenderson (profile), Mar 11th, 2010 @ 6:25am

        Re: Re: I also believe

        This I believe:

        Corporation are not persons, they are legal and financial entities that only exist at the whim of us, the people. We made them up and they should abide by whatever rules and conditions we deem fit. They have no natural rights whatsoever.

         

        reply to this | link to this | view in chronology ]

      •  
        icon
        ECA (profile), Mar 11th, 2010 @ 11:11am

        Re: Re: I also believe

        "They do this because they legitimately owed that money. You they owe nothing."

        You are giving them more rights then the individual has.. Wonderful.

        Now consider Im 50 years old, and have seen the FAKE OIL shortage, Airlines that have NOT FAILED, GM being Pulled out of Bankruptcy MORE then 1 time.. Iv been around long enough to see the taxes to RICH drop from 50% to almost nothing.. Iv seen the IRS Gipped out of new computers.

        I also know that the paper work for most companies scares the IRS ALL to hell and trying to figure out the PIKE OF CRAP for 1 corp takes years.

        Transparency works in 2 ways for a corp. IF you are TRUE to your stockholders and to those that WANT your goods, MORE people will buy your goods and stocks.
        It also shows us if SOMETHING IS/ISNT HAPPENING..as in ENRON. and the declarations of the CEO/board that "WE didnt know what was happening" to be a LIE. or it could have shown they WERENT lying.. that some other Boss in Enron was doing it.

        We have gone from STOCK HOLDERS having a say in the governing of a company/corp to they HAVE NO SAY.. Where the board and CEO decide each others wages. Where most of these persons are On the golf course or Sailing and NOT RUNNING THE COMPANY.

         

        reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Mar 10th, 2010 @ 11:17pm

    They should just make it so if you send a bad DMCA notice, you can just put "UPDATE: ..." in bold at the bottom with a short explanation of what happened and then everything is OK.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    BIRD KILLER, Mar 10th, 2010 @ 11:55pm

    @The Mighty Buzzard

    huh attribute? HOW about due process. HOW about freedom of information. HOW aobut civil liberty and justice for all.
    KINDA like just go read what the EU told you yanky loving facist pigs about a NON dmeocratic piece a garbage legislation thats hell bent on destroying culture and freedom across the world all in the name of the fucking all mighty god damn buck.

    WHAT gives you the right to HOLD onto knowledge. Wha gives you the right to keep me for knowledge. WHat gives you the right to not allow me to use knolwedge i have.

    What special attribute is this?
    YOU fucking GOD now?

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      The Mighty Buzzard, Mar 11th, 2010 @ 12:09am

      Re: @The Mighty Buzzard

      Spouted enough unrelated buzzwords yet? I don't need a "right" to not take an action, in this case remaining silent on matters we don't wish to speak about. The government is an exception because they, by their nature, owe their existence to us. Private citizens, companies, and corporations owe us nothing, zip, nada.

      Conversely, nothing at all gives you the moral or legal right to force any private citizen or entity to speak about something they don't care to speak about. That is taking something from a private citizen or entity without their consent and it most certainly is protected against, both legally and morally.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    i ate my wheatus, Mar 11th, 2010 @ 12:02am

    @The Mighty Buzzard ( part 2)

    OH and what give syou the right to make medicines so expensive people die?

    OH and what give syou the right to keep the worlds people hungry cause what morsels you give are so patented and copyrighted to death they won't afford them?

    OH and what the fuck IS A POP AND POPCIRN 17$ at a MOVIE THEATRE FOR?

    OH and what right do you have to sell me a 20 cent piece aplastic that has 10 - 14 songs on it when i can pack 300 on same htng and b forcd to pay 50 cents on top of another 50 cents for the plastic, where 50 cents is STOLEN by teh SAME RECORD INDUSTRY trying to shove ACTA up my ass..

    OH and what right or attribute made your kids and grand kids lazy fuckers and uneducated as to not contribute to society and you have to give them forever copyrights and patents?

    OH and why did the church put gallaleo in prison for being truthful and a man of science? YEA WE KNOW.
    the money people put in he tray ( NOW our TAXES)
    and control ( copyright and patents ) of society.

    YA know we'd prolly have made the first flight 1100 years ago except for wankers like you, solved all manner a issues and be living ina star trek universe where no one starves nor needs to work and can make art and do science at there whims.

    NO NO we need your fucking permsision
    WELL FUCK YOU DA DO DA DEE

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      The Mighty Buzzard, Mar 11th, 2010 @ 12:16am

      Re: @The Mighty Buzzard ( part 2)

      Wah, wah, and still again, wah. If you don't like it, start your own company and compete with the people you think are overcharging. If they pull anti-competitive crap like patent warfare, I'll even back you.

      ECA's second comment, the one I originally replied to, had nothing to do with anything you spoke of though. He asked for something he clearly felt he was entitled to simply because he wanted it.

      re: the star-trek paragraph
      HA! Hahahahahaha! You hereby win the stupidest thing said on the Internet this week award.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    NUKE intellectual property, Mar 11th, 2010 @ 12:16am

    @The Mighty Buzzard ( part 3)

    and seeing how you want to leave ACTA
    and can't abide by it anyhow why the hell should anyone trust an american govt to keep its word EVER?

    YOU lie , cheat , scam , murder , all in whatever crazy pipe dreams you dream up. AS we are starting to see form the riaa they are really beginning to look like fraking nut jobs. SERIOUS wackos that would fit right into wako texas.

    DO not expect Canada next ACTA meeting to be so nice when your republican buddies are trying to stir up the pot. OH and you want out with Mexico eh? WE should tell them to join a trade deal with south America and you'd be so isolated ...and like one guy said lets build the BERLIN WALL part two...kick out the 700000 Americans that live here year round cause were so awful a nation.....DOUBLE the gas and oil you get hell we'll triple it. AND JUST YOU TRY AND INVADE CANADA and see what happens. YOU'LL be right out of excuses then won't ya.

    what is IP?
    Intellectual property...
    MIND Property to be more exact.

    WHAT gives you the right to OWN anything of the mind?
    Only your faith or whatever god you belive in can tell me what to htink , how to think and how to sue what i htink and no where in any bible or koran or any religion does it say:

    THOU SHALT NOT SING AND REJOICE OF SONG AND SPIRIT
    OUR curse from GOD himself for eating of the tree of knowledge is what?

    IM not even religious and i know this....

    ya know i used to laugh off people calling the USA... SATAN
    But the more you deceive lie steal and cheat the more i begin to wonder...

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      The Mighty Buzzard, Mar 11th, 2010 @ 12:24am

      Re: @The Mighty Buzzard ( part 3)

      Do you even read what I type or do you just have pre-canned rants ready to post? If you can't be arsed to at least argue about something I actually said or implied, I can't be arsed to respond to your blather.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Mar 11th, 2010 @ 12:31am

      Re: @The Mighty Buzzard ( part 3)

      Attention advertisers: you too can reach this prime demographic!

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        The Mighty Buzzard, Mar 11th, 2010 @ 12:34am

        Re: Re: @The Mighty Buzzard ( part 3)

        I'd suggest ads for alcoholic beverages. He's obviously a big fan of them.

         

        reply to this | link to this | view in chronology ]

    •  
      icon
      Ccomp5950 (profile), Mar 11th, 2010 @ 12:37am

      Re: @The Mighty Buzzard ( part 3)

      "Your Mother"

      Really, I can't tell weather you are trying to be funny or what.

      When you think of ACTA don't think Americans back it, or at the very least it's safe to assume that anyone that reads Tech-Dirt doesn't back it.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    BIRD KILLER, Mar 11th, 2010 @ 12:34am

    UM you can't read

    are you a R.E.T.A.R.D?
    I read his comment( and why not ) but i put to you examples of things that are being done that are ridiculous with and about controlling knowledge and culture.

    Lets apply copyrights to car and factory workers too
    so that they get a residual as long as you own the car

    HELL every industry and suddenly NO ONE HAS any money but you fucktards want to go on being economic terrorists go ahead the EU is telling you... your the moron earning the most stupid thing of the week award.

    WHEN people realize how badly they are gouged what happens. they look for cheap alternatives which i'll add FREE = totally the cheapest.

    P.S. Correction first line should read
    and seeing how you want to leave NAFTA
    and if it wasn't for the "dark ages" of church domination and control and the literal executing/imprisoning of anyone studying science we may very well have been 1100 years in the future RIGHT now.

    GOOGLE dark ages dip shit before you start spouting off all YOUR buzzard words and dumb lame attempts and how are you TAM
    "Humanists saw the preceding 900-year period as a time of stagnation."
    P.S.S and a lot of scholars agree that if not for the dark ages and such we might wll have made a TON of advances a lot sooner. PROVING control is bad , and look at previous posts about the one click patent. THAT'S doing nothing for society.


    THE WHOLE PURPOSE OF COPYRIGHTS AND PATENTS IS TO ADVANCE SOCIETY NOT HINDER IT.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      The Mighty Buzzard, Mar 11th, 2010 @ 12:41am

      Re: UM you can't read

      Sweetcheeks, this is why I suggested actually reading what I said.

      For the record I'm against ACTA, against software and business method patents of any kind, and against any copyright that lasts longer than ten years (twenty if you feel like giving up half the profits for the second ten years).

      See, now don't you feel like quite the drunken twat?

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Mar 11th, 2010 @ 5:08am

    Upstream?

    I didn't know that the DMCA could apply to upstream providers. I wonder if someone could get a whole ISP disconnected from the internet by filing a DMCA complaint with their upstream provider. Since the upstream provider clearly couldn't just remove the alleged infringing downstream material, it would have no choice but to immediately disconnect the downstream ISP if it wanted to preserve it's safe harbor protections. Correct?

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      The Mighty Buzzard, Mar 11th, 2010 @ 9:32am

      Re: Upstream?

      Pretty much. Should be fun to watch once griefer kids figure that out and start sending DMCA takedown notices all over the place.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      nasch (profile), Mar 11th, 2010 @ 10:46am

      Re: Upstream?

      It would be very interesting to get Time-Warner Cable shut down over a DMCA issue. Obviously impossible since the upstream provider would only pay attention to DMCA notices from megacorps, who would never do that (they're not quite THAT stupid, are they?). But maybe that would get some movement on reforming the stupid law.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Mar 11th, 2010 @ 5:12am

    you continue to blame dmca for companies and individuals not responding correctly to them. sites dont have to be taken down unless the owner is unreachable or unresponsive. people hiding behind invalid domain registry info or using domain privacy with no contact info on their sites are screwing themselves. dont blame dmca for people trying to hide.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      abc gum, Mar 11th, 2010 @ 5:42am

      Re:

      Do not blame three strikes when you have been disconnected without due process for alleged violations all of which you dispute. /s

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      nasch (profile), Mar 11th, 2010 @ 10:48am

      Re:

      dont blame dmca for people trying to hide.

      OK, we'll just blame it for being ripe for abuse and suppression of speech.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Mar 11th, 2010 @ 12:25pm

        Re: Re:

        so are cable cutters. but we weigh the effectiveness of cable cutters in doing jobs we like versus their misuse to cut peoples internet connections and in the end we let people build, sell, and own cable cutters. almost every law has at least some potential for abuse in some manner.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Mar 11th, 2010 @ 3:01pm

          Re: Re: Re:

          but we weigh the effectiveness of cable cutters in doing jobs we like versus their misuse...

          The DMCA has no use I like.

           

          reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Mar 11th, 2010 @ 9:10pm

    Leave it to the EFF to once more make a mountain out of a molehill. Why it does not change its name to the AFAFF (Absolutist First Amendment Freedom Foundation) eludes me as that is a more apt and descriptive of its mission in life.

    Of course, we do have all that silly case law rejecting the First Amendment as an absolute right free from any limitations, be they federal or state via incorporation under the 14th Amendment. The First Amendment is somewhat unique to the US and its serves an incredibly important purpose, but like everything else in life even it has limits.

     

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This