Don't Think The 'Costs' To US Businesses From Bogus Claims Is Real? Read This

from the and-this-is-under-the-dmca dept

We've discussed at length how SOPA and PIPA put additional compliance costs and liability on US companies -- something supporters of the bills still insist is untrue. However, MetaFilter founder, Matt Haughey, has explained his reasons for supporting the boycott/blackout by telling a specific story of some of the mess he needed to go through to deal with a totally bogus DMCA claim. In my recent debate with Steve Tepp from the US Chamber of Commerce over this issue, Tepp insisted that because there are no monetary damages possible for intermediaries, there is no real "liability" for those companies. Tell that to Haughey, who relates his experience:
I've never written about my problems behind the scenes with the DMCA, a similar piece of law written to stamp out piracy but in the decade since it passed has morphed into a blunt instrument to silence websites for a variety of reasons. I was stuck in a Brazil/Catch-22 situation a little over a year ago due to a five year old song in MetaFilter Music that shared a filename with a leaked (November 2010) unreleased Michael Jackson song. Sony music group employed a dumb simple bot called "Web Sheriff" that crawled the web looking for filename matches and when found, alerted IP range owners of infringing works being offered by their customers. I got slapped with a 30 day ultimatum to immediately take down the uploaded song on MeFi Music or find my hosting account closed and banned, and all of MetaFilter erased in the process. The claims were ludicrous and I informed my host of the impossible nature of the claim but was told per DMCA guidelines I had to either file a counterclaim notice with Sony/Web Sheriff or ask them to issue a formal retraction.

I didn't want to waste money on lawyer time by filing a counterclaim and prolonging the fight so instead I had to contact Web Sheriff directly to request a retraction. This took many back-and-forth emails, and thanks to Web Sheriff being in London, added days to the process of exchanging emails. Eventually I got a human at the company to look at the dates on my files and agree it was not a Michael Jackson song. The formal retraction took nearly two weeks to secure and convince lawyers for my host that it was adequate for removing the DMCA claim. That's two weeks into a 30 day window before I lost my rack of servers and hosting account completely. I'll never forget last year when I went through this because it was two of the stupidest weeks of my life, all because of some problematic laws granted new powers to copyright holders and I had to engage in a prolonged legal fight thanks to a mistake made by a bot.
Don't think that kind of thing takes money, time and connections to handle reasonably well? The compliance costs are very, very real -- and that's just a single bogus DMCA notice. Imagine what happens when there are many -- and companies are dragged into various court battles. To say there's no compliance cost or liability under these bills is pure folly.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Jeremy2020 (profile), Jan 18th, 2012 @ 3:36pm

    This story is invalid. It does not praise the all-knowing, God, SOPA and his magic job creating powers.

    Also, my hair is a bird.

     

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  2.  
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    PlagueSD (profile), Jan 18th, 2012 @ 3:50pm

    The only jobs this bill will create are copyright lawyers...God know we need MORE of them!!!


    /sarcasm

     

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  3.  
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    TheNutman69321 (profile), Jan 18th, 2012 @ 3:51pm

    Has nothing to do with this article, just happened to be here when I was watching NBC nightly news. Opening of their story just called SOPA the stop online PRIVACY act. Haha.

     

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  4.  
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    fogbugzd (profile), Jan 18th, 2012 @ 3:52pm

    This is one reason we need a law that makes false claim of copyright illegal. There are too many situations where it is easy and cheap to file bogus claims that shift costs to innocent companies

     

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  5.  
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    Spaceman Spiff (profile), Jan 18th, 2012 @ 3:53pm

    Time for fair play turnabout

    It is time that independent content producers start issuing take-downs against the major labels under the DMCA. Get their sites taken off-line and they will soon start changing their "tune". So, if a similar name for a song and/or video is adequate to issue a take-down, why not use the same crowbar on them?

     

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  6.  
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    Christine Sandquist (profile), Jan 18th, 2012 @ 3:53pm

    So, hey, can we maybe start thinking about shifting the burden of proof back to the person making claims? Seems like that's the way to go. I can accuse anyone I want of anything - it's not the world's job to tell me why I'm wrong, it's MY job to say why I'm RIGHT.

     

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  7.  
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    Anonymous Coward, Jan 18th, 2012 @ 4:13pm

    Response to: Christine Sandquist on Jan 18th, 2012 @ 3:53pm

    It's remarkably similar to a trans person's worldview, where most people tell them they're wrong and must conform.

     

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

  8.  
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    MrWilson, Jan 18th, 2012 @ 4:23pm

    Re:

    Nah. IP maximalism is like Christianity. A core tenant of the religion is that everyone is a sinner/pirate. With that basis for your theology, you just assume everyone is guilty and assert that there's no proof necessary since it's blatantly obvious to everyone and therefore they should make amends to you for their dirty pirating acts.

     

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  9.  
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    GMacGuffin (profile), Jan 18th, 2012 @ 4:24pm

    DMCA is necessary to protect intermediates, but is horribly abused. My office has a system in place to make DMCA counter-notices as quick as possible, and still it can't be done for less than $100 without granting a pretty hefty client credit. There's always some hashing out with the host or its counsel.

    Bogus claims abound, and the host often takes an entire site down in response. The attorney fees in getting the site back online are generally nothing compared to the revenue lost by the victim in the hours (or days) that the site is down.

    Sure, you can sue for damages for the bogus takedown notice -- if you can get to the bad guys -- but it's like placing a $20,000 bet on an even-odds team. You might get some of the losses back (minus the "juice" in bookie parlance), or you might just lose it all. Or better yet, have an unenforceable judgement for your wall. Not usually cost effective.

    The losses are being suffered, but it generally ain't going to the copyright lawyers. It's going into competitors' pockets or the ether.

     

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  10.  
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    Anonymous Coward, Jan 18th, 2012 @ 4:42pm

    The copywrong industry finally figured out there's a lot of cookies in the interwebz jar. Some one else should pay when they get them.

     

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  11.  
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    ECA (profile), Jan 18th, 2012 @ 4:48pm

    I have to wonder

    2 things, to think about.
    1. do you know Where the corps get their money?
    2. Do you think they have enough?

    In number 1, I hope you already know.
    In the second, if you look around you may see it.. In adverts, in paper, in SPEED RACING and every sporting event you can see. ALL over TV, SAT, CABLE..
    They get to pay for Lawyers, lobbyists, and TONS of influence.
    WHO HERE would act in a movie for less then $1,000,000? The hired people get $1000+ per day. Who would work for $500, $250?, $100 per day, and do almost as well as those getting paid 10 times as much? Do the guys on TOP get paid? yes, go look at their cars, homes and so forth.

    REMEMBER #1..
    The movie industry has been subsidized for years, since WWII, and even before. They got paid for PROPAGANDA MOVIES/CARTOONS... this BACK WHEN actors HAD NO RECOURSE, and some REAL MEAN contracts.

    What shows do you remember from the past? WHICH ones have you seen recently?? ANYPLACE? AND THEN, they got the RIGHTS to RE-COPYRIGHT a public domain movie.

     

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  12.  
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    Anonymous Coward, Jan 18th, 2012 @ 5:01pm

    Re:

    I think I need to change my profession from Software Developer to Lawyer, It must be the one job class that's still growing in this economy.

     

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  13.  
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    Anonymous Coward, Jan 18th, 2012 @ 6:15pm

    There are always easy and hard ways for people to respond to situations. It is not clear to me why this individual appears to have believed he was pursuing the easy way, when just the opposite was true. A counter notice would have forced the issue and brought the matter to a quick resolution.

     

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  14.  
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    AdamBv1 (profile), Jan 18th, 2012 @ 7:29pm

    Re:

    Funny, its seems like I have heard that somewhere before...

     

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

  15.  
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    Nathan F (profile), Jan 18th, 2012 @ 7:39pm

    Re:

    A counter notice usually requires a lawyer which costs money.

     

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  16.  
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    Al Bert (profile), Jan 18th, 2012 @ 7:53pm

    Re: Re:

    I don't know why those parallels of irrationality never occurred to me. Thank you for connecting two of the largest sectors of my cynicism.

     

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  17.  
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    The Groove Tiger (profile), Jan 18th, 2012 @ 8:06pm

    Re: Time for fair play turnabout

    Already happened. They used their super-special YouTube anti-bogus-DMCA button and got their content restored within less than 24 hours (technically making YouTube violate the law, but well, high-court/low-court, you know how it goes).

     

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  18.  
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    Rekrul, Jan 18th, 2012 @ 8:46pm

    To say there's no compliance cost or liability under these bills is pure folly.

    No, you're reading it wrong! There's no compliance cost or liability for the copyright holder.

     

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

  19.  
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    Anonymous Coward, Jan 18th, 2012 @ 9:03pm

    Re: Re:

    Actually, it is one instance where the services of a lawyer are not needed if you know how to fill out a simple form and present facts that are relevant to the original notice sent to the site hosting content.

    I would not recommend self-help as a general rule, but under that facts stated in the article the general rule would not come into play.

     

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  20.  
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    Ninja (profile), Jan 19th, 2012 @ 4:37am

    I'm not against copyright per se. Same with patents and trademarks. However the laws, as written today, should be revoked and started all over again. This article illustrates quite well one of the major problems: bogus DMCA/Trademark/Patent claims MUST be punished with fines and the punishment should escalate for repeated offenders. Also, the offender should pay both the costs and the losses that such bogus DMCA complaint would generate.

    This simple measure would greatly reduce this type of problem.

    In the end the copyright laws should be abolished since there are many other points that need to be reviewed. Fair use (which would include non-commercial sharing), public domain (works based on public domain material can't be copyrighted), orphan works, copyright extension (10 years at most should suffice), explicit avoid 3rd-party liability if they comply with LEGITIMATE copyright complaints and so on.

    And we thought SOPA was a problem, huh? /sarc

     

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

  21.  
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    The Luke Witnesser, Jan 20th, 2012 @ 4:52am

    Here lies the truth about SOPA/PIPA that even TechDirt has yet to report: what MPAA, RIAA, and Hollywood execs do not want you to see.

    http://www.youtube.com/watch?v=WJIuYgIvKsc
    http://www.youtube.com/watch?v=NzS5rSvZXe8

    The truth behind why these big companies responsible for SOPA and PIPA are also responsible for piracy itself is far more insidious than even their outmoded business model.

    Hint: can you say, do as I say so I can crush you under heel?

     

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

  22.  
    identicon
    The Luke Witnesser, Jan 20th, 2012 @ 4:54am

    Here lies the truth about SOPA/PIPA that even TechDirt has yet to report: what MPAA, RIAA, and Hollywood execs do not want you to see.

    http://www.youtube.com/watch?v=WJIuYgIvKsc
    http://www.youtube.com/watch?v=NzS5rSvZXe8

    The truth behind why these big companies responsible for SOPA and PIPA are also responsible for piracy itself is far more insidious than even their outmoded business model.

    Hint: can you say, do as I say so I can crush you under heel?

     

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


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