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The Worst Response To A Reasonable Response To A DMCA Takedown I've Seen

from the forgive-the-hyperbole dept

Forgive the hyperbole in the headline. It's mostly a reaction to the headline of this post, sent in by JJ, from the site "Plagiarism Today" declaring: The Worst DMCA Response I've Seen. There, Plagiarism Today's Jonathan Bailey absolutely trashes the webhost Joyent for daring to defend one of its customers after Bailey sent Joyent a DMCA takedown. As we were recently reminded by an entertainment industry lawyer, just because you receive a DMCA takedown, you don't actually have to take down the content, if you believe the DMCA notice is wrong. It's rare to not do the takedown, because ignoring the takedown can potentially add significant liability, because you're rejecting the automatic safe harbors in the DMCA -- but if you believe it's wrong, you can keep the content up. That's what Joyent did. Joyent actually defended its customer and didn't immediately take down the content. That's hardly "the worst response." In fact, that makes me feel even more inclined to trust Joyent as a host that doesn't rush to pull content down.

Still, it's worth exploring in a bit greater detail what upset Bailey so much. Now, to be clear, I tend to think that plagiarism isn't nearly as evil as some make it out to be. I believe that those who do "plagiarize" without adding any value put their own reputations at great risk -- but it's hardly "stealing" or damaging in most cases. Mostly, it's just dumb. In other cases, it can be the root of collaboration and inspiration. On top of that, when it comes to blogs and blog plagiarism, I take an even dimmer view of complaints. People repost our content all the time, and that's great. But it gets even more ridiculous when people whine about their RSS feed being reposted. That's the entire point of an RSS feed -- for it to get posted elsewhere.

And that's exactly what happened to Bailey. He was complaining about an RSS aggregation site that was doing exactly what the RSS feed is designed to do: aggregating content. It redisplayed exactly what Bailey put in his feed -- and even linked right back to Bailey's original. The site appeared to be helping to promote Bailey's feed and using the very tool Bailey provided to do so. In fact, if you look around the web, you'll find plenty of other, well known and popular sites doing the same thing. For example, here's the aggregator Bloglines redisplaying Bailey's feed. Is that a DMCA violation? It seems to be the same thing that this (unnamed) site was doing. Bailey claims that even if this other site was an aggregator site, it doesn't count because somehow he didn't think the site added enough value. Isn't that for the users to decide? If that site really isn't adding much value, then what is he worrying about? No one will bother reading his content on that site because there's no additional value in doing so.

Filed Under: copyright, dmca, plagiarism, rss aggregator


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  • identicon
    Copyrights & Campaigns, 12 Feb 2009 @ 5:39pm

    This is actually not about the DMCA

    All the talk about the DMCA and the safe harbor in this incident appears to be completely irrelevant. According to Plagiarism Today, Joyent never registered a DMCA agent with the Copyright Office (and the lack of a listing on the Copyright Office's web site appears to bear that out, though there's some possibility that they're registered under another name). The DMCA is clear: if you don't register an agent and list it on your own site, you don't get a safe harbor. See 17 USC sec. 512(c)(2).

    So the notice Plagiarism Today sent to Joyent wasn't a "DMCA notice" (which can only be sent to a DMCA agent), and by apparently failing to act on the notice, Joyent wasn't giving up a safe harbor, because its lack of an agent means that it never was going to have a safe harbor in the first instance.

    I have no idea why Joyent apparently did not register an agent; any site that hosts third-party content without one faces potentially huge liability.

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

    • icon
      Mike (profile), 12 Feb 2009 @ 6:56pm

      Re: This is actually not about the DMCA

      All the talk about the DMCA and the safe harbor in this incident appears to be completely irrelevant. According to Plagiarism Today, Joyent never registered a DMCA agent with the Copyright Office (and the lack of a listing on the Copyright Office's web site appears to bear that out, though there's some possibility that they're registered under another name). The DMCA is clear: if you don't register an agent and list it on your own site, you don't get a safe harbor. See 17 USC sec. 512(c)(2).

      While this is technically true, it's actually pretty irrelevant to the overall point here. Whether or not it's specifically a "DMCA" takedown or just just a takedown isn't really an issue here and has nothing to do with the point of the story...

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

  • identicon
    Karen in Wichita, 12 Feb 2009 @ 5:48pm

    That's why it's called "syndication"

    I have to believe the guy was *trying* to pick a fight. Looking to invoke the Streisand effect, maybe?

    What sort of value does he expect out of an aggregator site, beyond the aggregation itself? I run a Plagger site for neighborhood stuff, and the only value it offers is having, well, a *bunch* of neighborhood stuff. You don't have to sort through blogrolls looking for the ones that are local.

    If there's full entries in the feed, there's full entries on my page. (If someone offered full *and* partial, I'd probably pick up the partial feed, if it was enough to be a good preview, just to save page space.) If that means people aren't seeing ads, well, they wouldn't in a feedreader either. I don't have ads on my page, though someday I suppose it could happen.

    I don't ask permission, either... if you're syndicating, I assume you want it to be picked up. I'd drop anyone who asked me to, but that's just courtesy. Were it phrased as a legal demand, well, that might actually slow the process down, as I wouldn't want it to appear that I thought the demand was valid.

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

  • identicon
    jd, 12 Feb 2009 @ 6:04pm

    Good for Joyent. I'm sick of the holier-than-thou issuing lame-o takedown notices, especially for content going out through RSS. If hosts aren't willing to go to bat for their customers, we're all in trouble.

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

  • icon
    C.G. (profile), 12 Feb 2009 @ 6:46pm

    The issue is the CC license.

    According to the author:

    "Though it linked to Plagiarism Today in the headline, it was not linking to or referencing my CC license nor was it referencing the “Share Alike” attribute. When combined with the hotlinked images, I decided to take action, filing a DMCA notice with their host, Joyent."

    It sounds as if he was more upset that the aggregator didn't actively cite the CC license nor did say "Share Alike" as he would have wanted them to. Thus the DMCA notice. Wow.

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

    • icon
      Mike (profile), 12 Feb 2009 @ 6:54pm

      Re: The issue is the CC license.

      It sounds as if he was more upset that the aggregator didn't actively cite the CC license nor did say "Share Alike" as he would have wanted them to.

      Then, uh, shouldn't he have put that into his RSS feed? If the site was simply republishing the RSS feed (as he implies) then the fault is actually (oops!) from Plagiarism Today for not including that info in their feed.

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

      • icon
        C.G. (profile), 12 Feb 2009 @ 7:12pm

        Re: Re: The issue is the CC license.

        I totally agree. It seems so easy to have done that. In fact, there are SO many ways to deal with the what-ifs of his concern. It didn't have to come down to a DMCA. Threatening an ISP or host doesn't seem like an action that needed to be taken. It's as if he's taking out his poor planning on the host and had he thought out how the tools should be used with the license he had in mind, this might not have been an issue.

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

  • identicon
    Anonymous Coward, 12 Feb 2009 @ 8:29pm

    Why would you misuse DMCA to devalue your own content and stifle the growth of your product like this. Dumbest move evAr.

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

  • identicon
    Jonathan Bailey, 12 Feb 2009 @ 10:33pm

    My Response.

    Though I can respect that we have a difference in opinion about the nature of RSS feeds and their intentions. The fact that the content is in a medium that makes it easy to copy is not the same as giving permission.

    Before you blanket decide that RSS scraping and republishing is acceptable. I would encourage you to first read an article no my site:

    http://www.plagiarismtoday.com/2006/08/29/why-rss-scraping-isnt-ok/

    And listen to an episode on This Week in Law where four attorneys reach the conclusion that RSS scraping is permitted.

    http://twit.tv/twil3

    The bottom line is that the site involved was in violation of my Creative Commons license and was using my content in a way that the license (which is attached to my feed, just not in the feed content) says it can not be used.

    If anyone is interested in using my feed and respecting my license, they are free to do so. But if you don't enforce a license that you give, it eventually becomes meaningless. I have a very liberal license, only requiring Share-Alike, but the rights I reserve I take seriously.

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

    • icon
      Mike (profile), 13 Feb 2009 @ 1:59am

      Re: My Response.

      Though I can respect that we have a difference in opinion about the nature of RSS feeds and their intentions. The fact that the content is in a medium that makes it easy to copy is not the same as giving permission.

      If you really want to believe that.. go ahead. But, you might as well just not be on the internet then.

      Before you blanket decide that RSS scraping and republishing is acceptable. I would encourage you to first read an article no my site:

      That article makes no sense. You basically redefine the entire RSS system, and pretend it's intended to do something entirely different than it is.

      No offense, but it is about as close to ridiculous as I can think of to complain about the fact that YOU put the content out in this manner, and then whine about how it's used. You can put the content out in a very different manner that would prevent these sorts of things. Your choice to ignore common convention -- and then to blame others for following up on it is pretty lame.

      The bottom line is that the site involved was in violation of my Creative Commons license and was using my content in a way that the license (which is attached to my feed, just not in the feed content) says it can not be used.


      The ONLY REASON there was a violation was because of YOUR MISTAKE in not putting the details of the CC license in the feed content itself. If you had done that, he would have been in compliance.

      It's incredibly lame to accuse someone else of breaking the law for your own mistake.

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

    • identicon
      Petrified Jello (formerly Twinrova), 13 Feb 2009 @ 4:23am

      Re: My Response.

      The fact that the content is in a medium that makes it easy to copy is not the same as giving permission.
      ---
      It's people like you which piss me off. I bet you're also the type who believes it's possible to own an idea, right?

      The second you post anything on the internet, you had best assume it's going to get shared, regardless of permission.

      It's the entire foundation of why the internet was created and since you don't seem to grasp this concept, leave it.

      I can not fathom why anyone would write something then get pissed off when it's shared. Isn't this your damn intent is to get as many people to read what you wrote?

      I can see people getting upset at having "lost credit" for the story, but it doesn't take long for this credit to be realized when the content is so widely spread. Anyone who is dumb enough to steal the works of others and call it theirs will quickly learn from the backlash of those who took it as truth.

      Mr. Bailey, I implore you to open your eyes and stop being stupid to the sharing of information on the internet, which was your intent in the first place. Don't be a negative statistic in the copyright/IP war.

      If you can't do this, then please, get off the internet and stay off while you write for mediums which are dying and have a much, much smaller audience.

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

    • identicon
      Anonymous Coward, 13 Feb 2009 @ 10:37am

      Re: My Response.

      Without expressing any opinion on the substantive content of your linked article, I do have to commend you for trying to present both sides of the issue. This is, unfortunately, a rarity that should be the rule.

      I do find it interesting, and disheartening, that so many are bound and determined to place the burden on the content creator to police his/her content by introducing technical measures to prevent unauthorized uses, and that barring same the content is fair game.

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


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