MPAA Freaks Out: Insists That Having To Consider Fair Use Before Filing A DMCA Takedown Would Be Crazy

from the oh-really-now? dept

Oh, there go the wacky lawyers at the MPAA again. Last week we noted that a key fight may be shaping up concerning the contours of Section 512(f) of the DMCA -- the clause that is supposed to allow people to fight back against bogus DMCA takedowns. The details of the fight itself are pretty silly -- basically two angry bloggers fighting with each other -- but the underlying legal issue is of critical importance. As we've noted, to date, 512(f) has been rendered almost entirely toothless, such that tons of completely bogus DMCA notices are filed all the time, stifling free speech. Here was a case that might actually allow a 512(f) win, and provide some further basis for future responses to abusive DMCA takedowns.

Is it really any surprise that the MPAA suddenly took notice of the case after the EFF filed an amicus brief? The MPAA had to step in and argue why it should be allowed to continued to file millions of DMCA takedowns without having to be that careful about bogus takedowns, because actually having to make sure a work is infringing would be too much work. So, the MPAA basically says, "we should be allowed to stifle free speech with no consequence because OMG PIRACY@!@!!" Yes, that's a paraphrase, but that's the crux of the MPAA's argument.
The MPAA respectfully submits that such an interpretation of § 512(f) is wrong and threatens to cause significant harms that Congress could not possibly have intended. The MPAA's interest in this matter is not academic. The MPAA and its members confront the piracy of their works by Internet actors on a massive global scale. One of the only means that the MPAA and its members have to ensure that Internet services that carry, host, or link to such content take steps not to facilitate such rampant piracy is through the DMCA's notice-and-takedown provisions. The rule that Plaintiff and Amici advocate, if carried to its logical conclusion, would impose significant and unwarranted burdens on copyright owners like the MPAA and its members who unfortunately must send literally millions of takedown notices every year to combat the mass infringement of their works on the Internet.
That's both wrong and ridiculous. It's not an "unwarranted burden" to ask DMCA filers to actually check to make sure a file is infringing. It's the whole freaking point. What's really going on here is that the MPAA is finally realizing that its now-common practice of hiring companies like DtecNet to send automated takedowns might run afoul of 512(f) because the computer programs aren't taking into account things like fair use.

So, the basic point that the MPAA is making is silly and wrong.

They're also flat out wrong on the law. The issue here, once again, is that the MPAA insists that fair use is only an "affirmative defense," and thus it has no reason to consider it before filing a DMCA takedown.
Fair use is an affirmative defense. It excuses conduct that otherwise is actionable as infringement, as the Supreme Court, the First Circuit, and numerous other courts and the Copyright Act’s legislative history have made clear.
But that is not what the law actually says. It does not say that it "excuses conduct that otherwise is actionable as infringement." Section 107 of the Copyright Act says:
... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
This is important. The law does not say that this it is an infringement, but "excused." It says it is not an infringement. If it's not an infringement, then it means that the use is authorized. And that's the key to the whole issue here, because 512(f) says you can be liable for damages if you misrepresent "that material or activity is infringing." Infringing. Again, fair use is not infringing. So if it is a clear case of fair use (and we agree that not all cases of fair use are clear), then not considering fair use whereby one would recognize that the use is authorized, and still filing the DMCA takedown, would be a misrepresentation that the work is infringing.

This isn't just me making this up. It's what the court said in the Stephanie Lenz case as well:
Here, the Court concludes that the plain meaning of “authorized by law” is unambiguous. An activity or behavior “authorized by law” is one permitted by law or not contrary to law. Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that “the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.”
The MPAA's desired interpretation of 512(f) is basically an attempt to reject the Lenz ruling entirely... and, more importantly, to make sure that almost no case could ever qualify for 512(f) damages. Which is exactly what they want: to be able to brush off all of the bogus DMCA notices they send without ever having to fear reprisal for stifling someone's speech.

I guess this is one more to add to the pile of evidence showing how absolutely ridiculous it is when the MPAA pretends it's a defender of fair use. A defender of fair use wouldn't support an interpretation of 512(f) that basically allows for DMCA takedowns on clearly fair use situations. And yet that's exactly what the MPAA is arguing for here.


Reader Comments (rss)

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    Rikuo (profile), May 13th, 2013 @ 2:19am

    "the MPAA and its members who unfortunately must send literally millions of takedown notices every year"

    No they don't. There's a myriad of other tactics they can use. There is no requirement that they absolutely, positively have to send DMCA notices.

     

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    Mega1987 (profile), May 13th, 2013 @ 5:58am

    basically... MPAA wants to shoot a person they thought who committed a crime without proving them guilty?

     

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    Tim K (profile), May 13th, 2013 @ 7:21am

    Once again

    Difficult for MPAA to differentiate between infringing and non-infringing material, but everyone else should still easily be able to know immediately what's infringing.

     

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      artp (profile), May 13th, 2013 @ 9:28am

      Re: Once again

      Just because they can't tell the difference doesn't mean that it should go to an impartial third party (judge sitting in courtroom) for determination of infringement. The **AA knows! [Cue Shadow music.]

       

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      Anonymous Coward, May 14th, 2013 @ 3:42am

      Re: Once again

      The MPAA members usually have very low IQ scores.

      Maybe they are just relying on everyone being smarter than they are?

       

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        Anonymous Coward, May 20th, 2013 @ 10:12am

        Re: Re: Once again

        Yeah, umm... Tell that to Brian May, astrophysicist, rock star. Oh, you can call him doctor, by the way.

         

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    Ninja (profile), May 13th, 2013 @ 7:37am

    This is gonna be some epic fight. It's kind of ironic that it`s gonna take place over some petty fight between two unknown bloggers.

    The MPAA tries to pretend they care for the public or the artists but they keep showing their true colors here and there eh?

     

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      jupiterkansas (profile), May 13th, 2013 @ 9:07am

      Re:

      It's probably better that way since a ruling can be made without the influence of the MPAA's army of lawyers, and a settlement is less likely.

       

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    Anonymous Coward, May 13th, 2013 @ 8:47am

    MPAA would rather skip the part where they have to determine its infringing and just go straight to DCMA notices.

     

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      Anonymous Coward, May 13th, 2013 @ 9:11am

      Re:

      Hardly.

      What they really want is three things;

      1) A giant off button for the internet.
      2) Unquestioned veto power of any technology they don't like or that might threaten their control.
      3) Permanent copyright.

      And they'll do anything they can to get it.

       

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        jupiterkansas (profile), May 13th, 2013 @ 9:18am

        Re: Re:

        And even if they got it, they still wouldn't be happy and would ask for more.

         

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        DannyB (profile), May 13th, 2013 @ 10:50am

        Re: Re:

        4) people should not be allowed to loan, borrow DVDs. (Perhaps even watch DVDs?)

         

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          Anonymous Coward, May 13th, 2013 @ 12:56pm

          Re: Re: Re:

          Or own DVDs. You may only rent them and only they may rent them out.
          And it will require a cable subscription, a monthly DVD Rental subscription and you will still have to pay per view to watch. And there will be 10...20...30...40...50...60...twice the movie's length (progressively over time) of unskippable previews AND there will be commercials.
          Also you must purchase their proprietary rental equipment and drive to a designated viewing area (because home rentals are piracy). Any person you attempt to bring with you must also pay all required fees and meet all prerequisites (subscriptions).
          After the movie you must sign a legally binding agreement that says you cannot say any negative things about the movie you just saw or anything that might deter someone else from wanting to rent the movie.

          Oh, movies have music too...so of course if you want to enjoy your movie with music you have to be a subscriber of their premium music service and prepurchase the movie soundtrack.

          If the movie is based on a book...oh dear lord help us.

           

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            Anonymous Coward, May 13th, 2013 @ 12:58pm

            Re: Re: Re: Re:

            Since they own the patents on 3D you will have to pay a licensing fee for each eyeball you have that is capable of seeing 3D objects (not just fake movie 3D, but actual, real 3D objects).

             

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        Greevar (profile), May 13th, 2013 @ 11:36am

        Re: Re:

        It's truly amazing how crazy people get when it comes to their perceptions of profit and property. The two being sacrosanct, they'll lie, cheat, and abuse everyone to maintain their delusions.

         

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    Anonymous Coward, May 13th, 2013 @ 8:47am

    Before the advent of precision munitions we deployed this same tactic in WW2. Carpet bombing. We justified the ends with the destruction of the target. Ignoring the fact that many innocents were also killed.

     

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      Zakida Paul (profile), May 13th, 2013 @ 8:56am

      Re:

      Sounds like Obama's drone attacks

       

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        Anonymous Coward, May 13th, 2013 @ 9:13am

        Re: Re:

        Nah the B-17's were slightly more accurate and were tasked to rain destruction in the general region of a known enemy location...

         

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          Chuck Norris' Enemy (deceased) (profile), May 13th, 2013 @ 9:58am

          Re: Re: Re:

          Well, I guess if the plan is to carpet bomb a "general region" then accuracy will be pretty high.

           

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            silverscarcat (profile), May 13th, 2013 @ 11:52am

            Re: Re: Re: Re:

            Simo Hayaha laughs at carpet bombing and happily kills the Soviets who tried it on him.

            Seriously, he was the most badass sniper/assassin to ever live.

            The Soviets nick named him the "White Death" because they couldn't stop him, and, yes, they DID try carpet bombing him. Hell, he got shot in the face and woke up a week later.

             

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      Aaron Wolf (profile), May 13th, 2013 @ 1:27pm

      good analogy

      That's what the MPAA wants: the ability to carpet bomb anyone sharing works of whatever kind on the internet.

       

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    That Anonymous Coward (profile), May 13th, 2013 @ 8:51am

    3...2...1...

    I'm waiting for her to show up again and go on and on about how the MPAA are supporting her fight because she's so right...

    I'll even help her out, the author is Mike Masnick. If you expect him to take your gibbering seriously you might want to call him by his name rather than original author.

    Dtecnet can't manage to get a DMCA notice correct, and yet they can send notices that can screw with peoples net access... there is something wrong there, just can't put my finger on it.

     

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    Anonymous Coward, May 13th, 2013 @ 8:52am

    I'd rather wait and see if the MPAA freaks out, and insists that having to consider innocence before dragging people to court would be crazy. Or, put in other words, if they file an amicus brief in defence of Prenda's practices.

     

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    Zakida Paul (profile), May 13th, 2013 @ 8:54am

    It's a brain capacity thing

    The folks over at the MPAA (or RIAA, for that matter) cannot process too many things simultaneously. Introducing fair use into their considerations would be one too many variables. We can't have that.

     

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      That Anonymous Coward (profile), May 13th, 2013 @ 9:37am

      Re: It's a brain capacity thing

      the RIAA is pretty much a silent partner at this point having wounded themselves deeply with the lets sue everyone campagin.

       

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        Anonymous Coward, May 13th, 2013 @ 9:47am

        Re: Re: It's a brain capacity thing

        and the difference between what the RIAA did and the MPAA are doing is?????

         

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          That Anonymous Coward (profile), May 13th, 2013 @ 10:17am

          Re: Re: Re: It's a brain capacity thing

          The RIAA was being very publicly stupid, the MPAA filed a brief in a forgettable case and is hoping the general public don't see their dirty fingers on it.

           

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    Jesse (profile), May 13th, 2013 @ 9:00am

    Interesting. If it's ISPs magically waving away infringement, it's really easy to figure out infringement from non-infringement. If they have to do it, it's too hard.

     

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      Anonymous Coward, May 13th, 2013 @ 11:54am

      Re:

      Or Google. Google shouldn't show any links to anything infringing right?

      The MPAA just wants/expects every ruling to end up in their favor. When it doesn't, they just bury their heads in the sand and pretend it went their way anyway...

       

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    Anonymous Coward, May 13th, 2013 @ 9:00am

    'an interpretation of § 512(f) is wrong and threatens to cause significant harms that Congress could not possibly have intended'

    Congress didn't intend there to be multiple infringements of the DMCA process, but because it didn't have the balls to be explicit when it wrote and implemented the bill, left the door open for abuse by industries such as the MPAA. Congress has the opportunity to correct this wrong and ensure that anyone abusing the fair use clause are made to pay. i bet, however, that as soon as the purse is opened and then tipped towards the bank accounts of senators, the loophole will be plugged. plugged all right but in a way that no one expects! they thick fuckers will make it even easier to abuse the DMCA and even less likely for anyone to be penalised for doing so. i hope Lofgren and supporters for fair copyright law changes are keeping an eye on this, particularly if Dodd gets on the rostrum again and threatens to remove funding from certain ares if anyone dares to NOT do what the MPAA wants and expects in return!!

     

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    madasahatter (profile), May 13th, 2013 @ 9:04am

    Fair Use

    Since several uses are by law are not copyright infringement sending a valid DMCA notice should require a human review. I suspect most flagged possible infringement is likely geniune infringement under the law and as Mike noted some will be a judgement call either way.

    The MPAA does not want to spend the money required to properly follow the law. They can not totally rely on automated tools to flag infringement since many exempt uses are difficult for automated processes to determine.

     

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      Rikuo (profile), May 13th, 2013 @ 10:38am

      Re: Fair Use

      "Many exempt uses are difficult for automated processes to determine"

      Try downright impossible. Computers are binary, 1 and 0, yes or no, true or false. To a computer, there is no such thing as a middle ground. Movie studios give "digital fingerprints" to sites like Youtube, to detect automatically if their movies are uploaded. Let's say I make a review of a movie and include in it a portion of movie footage, which is completely legal and fair use. It gets uploaded but the detection system sees that a portion of a protected movie is in there and flags it automatically. The system can only ask "Is the protected movie (or a portion) there or not?" You can't program it to determine if it's fair use or not, since unfortunately, such a thing can't be defined in code.

       

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        Ninja (profile), May 13th, 2013 @ 10:50am

        Re: Re: Fair Use

        To be fair there are some IA that can learn enough to identify false positives with quite the accuracy depending on the topic at hand. I'm not sure about copyright though since it relies on previous input from humans and seemingly nobody fully agrees with one another when it comes to copyright.

         

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    Anonymous Coward, May 13th, 2013 @ 9:07am

    Fair use

    The publishers only have one definition of fair use:
    Works that we control are fair use, all other works are infringing. To avoid infringement, sign a publishing contract so we can get rich and you get the last crumbs.

     

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    Anonymous Coward, May 13th, 2013 @ 9:13am

    So if it is a clear case of fair use (and we agree that not all cases of fair use are clear), then not considering fair use whereby one would recognize that the use is authorized, and still filing the DMCA takedown, would be a misrepresentation that the work is infringing.

    This isn't just me making this up. It's what the court said in the Stephanie Lenz case as well:

    Here, the Court concludes that the plain meaning of “authorized by law” is unambiguous. An activity or behavior “authorized by law” is one permitted by law or not contrary to law. Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that “the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.”


    Unsurprisingly, you're misrepresenting Lenz and twisting it to mean what you want it to mean. As the court in Lenz said this past January:
    In Rossi, the court held that “the ‘good faith belief’ requirement in § 512(c)(3)(A)(v) encompasses a subjective, rather than objective, standard.” Id. at 1004. The plaintiff in that case asserted that had the defendant conducted a reasonable investigation into the plaintiff's allegedly offending website, the defendant necessarily would have realized that there was no copyright infringement. Id. at 1003. The Court of Appeals concluded that “[a] copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.” Id. at 1005. “Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.” Id. In light of Rossi, it appears that Universal's mere failure to consider fair use would be insufficient to give rise to liability under § 512(f). Lenz thus must demonstrate that Universal had some actual knowledge that its Takedown Notice contained a material misrepresentation.
    Lenz v. Universal Music Corp., 5:07-CV-03783-JF, 2013 WL 271673 (N.D. Cal. Jan. 24, 2013).

    Your analysis misses the nuance here, Mike. It's not that it's always a misrepresentation if the copyright holder doesn't consider fair use, as you so claim. Even Lenz says that.

     

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      Anonymous Coward, May 13th, 2013 @ 9:20am

      Re:

      Yeah but isn't this particular case about someone who has openly said they filed the takedowns to silence her?

      Thus implying they have knowledge that they made a material misrepresentation?

       

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        Anonymous Coward, May 13th, 2013 @ 10:39am

        Re: Re:

        Hey, at least the AC is pointing out why he thinks Mike's wrong. This is progress.

         

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        Anonymous Coward, May 13th, 2013 @ 11:50am

        Re: Re:

        Yeah but isn't this particular case about someone who has openly said they filed the takedowns to silence her?

        Thus implying they have knowledge that they made a material misrepresentation?


        It's amazing to me that stuff like this gets marked as "insightful." I'm discussing the law on takedown notices IN GENERAL, correcting Mike's misrepresentation of what the law is. You're discussing that general law as applied to these specific facts.

         

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          CK20XX, May 13th, 2013 @ 12:22pm

          Re: Re: Re:

          You're also letting your hatred of Mike and the community seep through. How do you ever hope to be effective if you can't be objective?

          The key to effective debate is to first seek out the point your opponent is trying to make and acknowledge it, then you explain your own reasoning to the contrary. You'd also do well to remember that there's a hell of a lot more to this than interpretations of laws. You could have religious debates about that until the cows come home and you'd still be missing the bigger, more important point behind everything.

           

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            Anonymous Coward, May 13th, 2013 @ 12:42pm

            Re: Re: Re: Re:

            AJ will become objective about the same time that the MPAA and RIAA becomes objective.

            Put another way, "When hell freezes over."

             

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              Anonymous Coward, May 13th, 2013 @ 1:15pm

              Re: Re: Re: Re: Re:

              Huh? I'm the most objective person on TD.

               

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                Anonymous Coward, May 13th, 2013 @ 1:42pm

                Re: Re: Re: Re: Re: Re:

                +funny

                Nice try AJ. You're the only person here that believes that.

                 

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                Rikuo (profile), May 13th, 2013 @ 2:09pm

                Re: Re: Re: Re: Re: Re:

                Says the guy who once conflated the act of infringing with the act of rape, because both are crimes, and thus, if one is against rape, one automagically must be against copyright infringement.

                 

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                That One Guy (profile), May 13th, 2013 @ 2:22pm

                Re: Re: Re: Re: Re: Re:

                Someone's gunning for the 'Funniest comment of the week' it seems.

                 

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                Anonymous Coward, May 13th, 2013 @ 10:06pm

                Re: Re: Re: Re: Re: Re:

                In other news, AJ has smashed all the mirrors in his house to pieces because they were violating his copyright on his face.

                 

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                  Anonymous Coward, May 14th, 2013 @ 12:13pm

                  Re: Re: Re: Re: Re: Re: Re:

                  In other news, AJ has smashed all the mirrors in his house to pieces because they were violating his copyright on his face.

                  The mirrors have an implied license.

                   

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      Donglebert the Needlessly Obtuse, May 20th, 2013 @ 6:02am

      Re:

      Taking your argument at face value, that further undermines the MPAA or its represented parties.

      If the party that issued the takedown notice is being advised by a group that clearly knows of the fair use requirement, the lack of consideration of fair use should be considered a willful avoidance of the issue.

      Simply put, it should be written into their internal processes.

       

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    Beech, May 13th, 2013 @ 9:15am

    orly?

    "would impose significant and unwarranted burdens on copyright owners like the MPAA and its members who unfortunately must send literally millions of takedown notices every year to combat the mass infringement of their works on the Internet."

    OK, so the MPAA sends millions of notices a year, but what percentage of them are actually about a file that is actually infringing? Maybe if the bastards actually looked at what they were filing they could cut the number of notices they send down by a few orders of magnitude.

     

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    artp (profile), May 13th, 2013 @ 9:31am

    threatens to cause significant harms that Congress could not possibly have intended.

    Translation:
    That's not what we told them to do!

     

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    crade (profile), May 13th, 2013 @ 9:35am

    Sheesh, they already got their "no fair use can exist with DRM" law. Can't they just use that?

     

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    Anonymous Coward, May 13th, 2013 @ 9:37am

    MPAA Consider Fair Use

    That is something to be determined by courts, of course the MPAA considers it NOT fair use, and are willing to let a court decide.

     

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      jupiterkansas (profile), May 13th, 2013 @ 9:45am

      Re: MPAA Consider Fair Use

      Except the MPAA does everything it can to keep the courts from ruling on Fair Use, since a solid case history would undermine their control.

       

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    out_of_the_blue, May 13th, 2013 @ 9:38am

    If not an "unwarranted burden" for MPAA, then

    neither would it be for Megaupload, Rapidshare, or other files hosts to give a cursory glance to at least files having titles of recent movies. -- The justication is sheerly commercial: those sites ARE getting money off what they host, so they've a positive duty to do SOME degree of checking and make good faith attempts up front.

    However, the standard Techdirt argument of "too many to check" just doesn't apply to MPAA, right?

    Mike, you're just flat wrong that at this degree of complexity and interlocking rights that MPAA is "flat out wrong on the law" -- there's always room for argument, that's the WHOLE purpose of a trial, to thrash out and reach some reasonable clarification. Just because a court has decided on what statute means, it's never fixed forever like common law. So your absolute assertion there just reveals bias.

     

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      crade (profile), May 13th, 2013 @ 9:40am

      Re: If not an "unwarranted burden" for MPAA, then

      It's blatantly obvious from where I sit

      Difference is dead simple:
      1) you choose to place the burden on others for your (potential) benefit
      2) you choose to take the burden on yourself for your (potential) benefit

       

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      Anonymous Coward, May 13th, 2013 @ 9:46am

      Re: If not an "unwarranted burden" for MPAA, then

      The issue is that Megaupload is not privy to who is doing the uploading.

      A movie title uploaded by someone working at a company is an authorized work (Verizon, Youtube) and therefore should not be removed.

      Sometimes titles can be very similar.

      Sometimes titles can be similar to titles of an entirely different piece of software.

      The MPAA should at least check they aren't sending notices at things like REVIEWS, in which no files are hosted at all.

      There is no duty to check anything. Most provide tools so that the copywrite holders can do as they please, for better or worse. Getting money from what they host is irrelevent, earning money doesn't mean you have to do something not required by the law. Imposing unnecessary costs on yourself for certain industries just isn't required, legally.

      I disagree with the morally argument because of how backwords the MPAA and RIAA is, if they didn't have to be dragged into every new generation of technology by force, they'd at least have some ground to stand on.

       

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      Anonymous Coward, May 13th, 2013 @ 9:53am

      Re: If not an "unwarranted burden" for MPAA, then

      The file hosts have no way of knowing anything about any particular file, aside from small things like a hash. A suitably formatted text file could look the same as a rap song. They have no *real* way to tell if a file is authorized or infringing because they don't know what all is owned by who, or what each file actually is.

      Only the owners of a work can know if something is infringing. It's the owners' responsibility to determine if a distribution is authorized or not. This runs into the problem that there's just too much online for any organization to filter through quickly enough to determine if a work is infringing. Owners can't employ enough people to watch all the flagged works and figure it out, it's just not possible. Thus, the scattergun approach seen today.

      Thus the law is impossible to enforce as-is. Thus it is a bad law.

       

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      Anonymous Coward, May 13th, 2013 @ 10:11am

      Re: If not an "unwarranted burden" for MPAA, then

      "However, the standard Techdirt argument of "too many to check" just doesn't apply to MPAA, right?"

      If the MPAA says it doesn't apply to others, then it doesn't apply to the MPAA.
      What part of that don't you understand, boy?

       

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      DH's Love Child (profile), May 13th, 2013 @ 10:13am

      Re: If not an "unwarranted burden" for MPAA, then

      It's apples and penguins. A hosting company is not required BY LAW to actively monitor its site for infringement. And would you trust YOUR data to any company that actively monitors your uploads? I sure as hell wouldn't, and neither would any reasonable business person.

      A copyright holder, BY LAW is required to take fair use into account as they are making a legal claim, under penalty of perjury, that: 1) they are the legal copyright holder and 2)the content is actually infringing.

      Or to put it differently, the burden IS on the MPAA (or RIAA, or whomever) to show that the content IS infringing before taking it down. That's what the law says. It's not 'unwarranted' it's the LAW.

      If we take that argument to a logical extreme, prosecutors wouldn't have jobs, because actually proving someone committed a crime would cause an 'unwarranted burden' to law enforcement.

       

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      saulgoode (profile), May 13th, 2013 @ 10:49am

      Re: If not an "unwarranted burden" for MPAA, then

      If I see somebody driving a car on the street, I know whether that car is mine. I do not necessarily know whether the car is yours. Even if I do know the car is yours, I do not necessarily know whether you gave the driver permission to use it.

      Should I be responsible for reporting your car stolen?

       

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      Ninja (profile), May 13th, 2013 @ 10:53am

      Re: If not an "unwarranted burden" for MPAA, then

      I bestow upon you the DERP AWARD for mixing rights holders (who supposedly know what is infringing or not) with service providers....

       

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      DannyB (profile), May 13th, 2013 @ 10:54am

      Re: If not an "unwarranted burden" for MPAA, then

      Out of the blue: answer me this.

      1. Is it easy or is it difficult to identify if something is fair use?

      2. Is it easy or is it difficult to identify if something is infringing?

      If it is easy, then why do you oppose doing it before filing DMCA takedowns? If it is too difficult to do on a massive scale, they why do you expect others to be able to do it on a similarly massive scale?

       

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        Ruben, May 13th, 2013 @ 11:01am

        Re: Re: If not an "unwarranted burden" for MPAA, then

        LOL.

        OOTB doesn't answer questions, she only asks them.

         

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        horse with no name, May 13th, 2013 @ 12:14pm

        Re: Re: If not an "unwarranted burden" for MPAA, then

        I'll answer that:

        1. It's very hard. Fair use isn't an absolute, rather it is a series of tests that a given use may or may not fulfill, depending on how you look at things. It may also in some ways be affected by the standing of the user, and gets particularly blurry online when you look at things like blogs. It isn't absolute. It's hard enough that cases that make it to court are often narrowly split by a single item in the list. Not even all lawyers would agree, which we have seen is the local standard for when something doesn't work.

        2. Pretty easy most of the time. If I hold the rights to something, and didn't grant the right of use to you, it's generally infringing. Since it's very hard to determine actual fair use in many cases, it would pretty much end right about there. The inability of a rights holder to determine fair use should not unduly infringe on their rights.

         

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          saulgoode (profile), May 13th, 2013 @ 12:29pm

          Re: Re: Re: If not an "unwarranted burden" for MPAA, then

          2. Pretty easy most of the time. If I hold the rights to something, and didn't grant the right of use to you, it's generally infringing.
          This is only true for you (the copyright holder) or me (the alleged infringer). Third parties (such as filelockers or ISPs) have no way of readily knowing whether I am you or whether I have been authorized by you (setting aside the issue of Fair Use).

           

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          Anonymous Coward, May 13th, 2013 @ 12:45pm

          Re: Re: Re: If not an "unwarranted burden" for MPAA, then

          so your definition of easy is if you completely ignore fair use then determining infringement is very easy.

          But by definition fair use is NOT infringement which means

          by your definition you are FALSELY misrepresenting all fair uses as infringement

           

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          Rikuo (profile), May 13th, 2013 @ 1:08pm

          Re: Re: Re: If not an "unwarranted burden" for MPAA, then

          Your first point makes a lot of sense, but your second doesn't. There's 3 parties involved in cases like this. Just because YOU, the copyright holder, know you didn't give a licence to John Q Public, doesn't mean the ISP, cyberlocker or other company automagically knows. They have no way of knowing before a DMCA notice is filed and from what Techdirt and other sites have been reporting, not even they can be trusted, even when filed by large corporations whom one would typically assume would have well-trained legal personnel who'd know better than to file them all willy-nilly (e.g. HBO demanding that Google delist a hbo.com link)

           

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      cpt kangarooski, May 13th, 2013 @ 11:19pm

      Re: If not an "unwarranted burden" for MPAA, then

      If not an "unwarranted burden" for MPAA, then neither would it be for Megaupload, Rapidshare, or other files hosts to give a cursory glance to at least files having titles of recent movies.

      Oh, I disagree. There are two reasons.

      First, copyright holders are in the best position to know if a work is legitimately uploaded to a particular site or not, since they hold the authority to do so (or granted it to someone). It's not really possible for the service providers to know who their users are and under what authority they're operating, if any. The situation is especially complicated if a work incorporates several other works within it (e.g. a movie may have music in it, and that music may be a separate copyrighted work, and the copyright holder of the music and the copyright holder of the movie are in a better position to know whether the music is being used legitimately than the service provider).

      This kind of suggests that copyright holders filing takedown notices shouldn't have to worry about things like whether the complained of use is fair or not, except that in the case of whether a copyrighted work is legitimately used or not, that determination hinges on facts which may not be at all apparent from the files themselves. (Typically the authority to upload the file lies in contracts that are never made public) However, in the case of fair use, it's not hard for third parties to look at the use itself, which in many of these cases is fairly apparent from the file, and determine whether the user has a plausible argument or not. The copyright holder might not have much of an incentive to make a strong argument of fair use, but he is capable of working through the analysis, and so long as he makes a good faith effort to do so (a cursory effort would not suffice) he ought to be obligated to. Ditto for the other various exceptions to copyright.

      The second reason is technical. Human beings working for the copyright holder are ultimately behind takedown notices. This must be so, because a takedown notice requires, as a matter of law, a human signature and a good faith belief, neither of which can be automated. OTOH, the service provider almost invariably uses automated facilities to accept uploads from users. Humans at the service provider can't inspect everything that goes up -- there's far too much material. The best that you could argue for, if you were even slightly interested in an honest argument, would be to require the people uploading to avow that they are uploading files lawfully. They might lie, but at least the service provider asked some human being -- one who knows what they're uploading and their reason for doing so -- to verify that it was legitimate.

      it's never fixed forever like common law

      Common law is never fixed forever. That's really one of the most defining features of the common law; it is set by the courts, and it changes (admittedly, slowly) over time. Precedents are not absolute, although they can be strongly binding, yet nevertheless fall overnight as a sea change overtakes the courts. Product liability law is a good example of how common law changes. Your mistake is typical of you though.

       

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    Anonymous Coward, May 13th, 2013 @ 10:06am

    So, using the MPAA's statement to apply to law enforcement.

    "The Police respectfully submits that such an interpretation of § 512(f) is wrong and threatens to cause significant harms that Congress could not possibly have intended. The Police's interest in this matter is not academic. The Police and its fellow first responders confront the crime by criminals on a massive global scale. One of the only means that the Police and its first responders have to ensure that criminals are put in jail before they break the law is through the DMCA's notice-and-arrest provisions. The rule that Plaintiff and Amici advocate, if carried to its logical conclusion, would impose significant and unwarranted burdens on law enforcement like the Police and its first responders who unfortunately must send literally millions of people to jail every year to combat the mass law breaking throughout the world."

    Yeah, that sounds about right, we must be able to throw millions of people in jail before we know they committed a crime!

     

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    wallow-T, May 13th, 2013 @ 10:44am

    On the subject of fair use of material which the copyright owner has properly identified***, I have to lean more towards the MPAA. Fair use is a matter to be determined at trial.

    The DMCA's fair-use safety valve is the user's counternotice to the Service Provider, in which the user says, in a loose paraphrase:

    "I don't think my use infringes. Here are my contact details. Sue me if you wish & I'll see you in court."

    Yes, fair use has to be defended at trial if the copyright owner follows through with a suit. Sucks to be the defendant, but that's the law as I understand it.

    But the key point of the notice & take-down/counternotice dance is that it establishes a known set of parties for a lawsuit, if the copyright owner wishes one. After a takedown request, the user doesn't get to say, "Fair use, and you can't find me, nyahh nyahh."

    Disclaimer: not a lawyer.

    *** improper identification on a takedown request -- in particular, relying on matching file names -- ought to be sanctionable.

     

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      wallow-T, May 13th, 2013 @ 10:48am

      Re:

      I failed to finish my explanation: Upon receipt of the counternotice, the Service Provider is to restore access to the material in question, the subject of the inital takedown notice. Now that contact information has been exchanged and a lawsuit is possible between the parties, the ISP is out of the picture and off the hook until/unless there is a court order to remove material.

      Nobody planned for industrial-scale takedown notices.

       

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        Rikuo (profile), May 13th, 2013 @ 11:47am

        Re: Re:

        Which is where my hatred for the DMCA comes into play. No-one at the time foresaw the sheer scale of Web 2.0, the rise of User-Generated-Content. The DMCA allows for the suppression of speech (albeit temporarily) but there is no onus to restore it. Speech is important, which is why throughout the democratic world, we have laws that protect the existence of it: but once the copyright business model is invoked, suddenly it's shoot first, ask questions later. Want to silence your political opponent? Just declare copyright infringement and bam! Their content is down.

         

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          horse with no name, May 13th, 2013 @ 12:17pm

          Re: Re: Re:

          The DMCA allows for the suppression of speech

          No it does not. A service provider who gets a DMCA notice about content is suppose to contact the user or account holder in question and given them time to reply. The real issue of web 2.0 as you call it is that people tend to post anonymously or using mail drops that they don't even check. That means that the service provider is left with no choice but to take things down.

          Many service providers also mistakenly feel that they should take things down before contacting the user in question. That is their poor interpretation of their responsibility under the law, and not a flaw of the law itself.

          If you are going to make shit up, at least blame the right parties, the service providers who chicken out.

           

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            John Fenderson (profile), May 13th, 2013 @ 12:34pm

            Re: Re: Re: Re:

            No it does not.


            Actually, yes, it does.

            A service provider who gets a DMCA notice about content is suppose to contact the user or account holder in question and given them time to reply.


            Says who? A service provider is allowed to do this, but there is not requirement to do it. So, given that they are already expending a lot of time, effort, and money to comply with the part they must comply with, how many are going to spend even more to comply with the part that is totally optional?

            The real issue of web 2.0 as you call it is that people tend to post anonymously or using mail drops that they don't even check. That means that the service provider is left with no choice but to take things down.


            Not really. Nobody much complains about the type of situation you're talking about. The complaints, or at least the ones that rise to the level of widespread outrage, involve parties who are not only identifiable, but identified.

            That is their poor interpretation of their responsibility under the law, and not a flaw of the law itself.


            Not poor interpretation at all. It's the safe interpretation. That the safe interpretation leads to these effects means that the law is flawed.

             

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            Rikuo (profile), May 13th, 2013 @ 1:56pm

            Re: Re: Re: Re:

            Yes it does.

            The service provider doesn't want to be a part of a lawsuit, so, to protect themselves, they will invariably earn their safe harbours by taking down the content.
            Hence my whole problem with the suppression of speech. Speech gets deleted because a whole section of industry is pressured to being the ones who pull the trigger just so they can avoid the lawsuits.

             

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            Rikuo (profile), May 13th, 2013 @ 2:03pm

            Re: Re: Re: Re:

            "No it does not. A service provider who gets a DMCA notice about content is suppose to contact the user or account holder in question and given them time to reply. "

            Nope.

            "http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#N otice_from_Copyright_Owner"

            "If a notice which substantially complies with these requirements is received the OSP must expeditiously remove or disable access to the allegedly infringing material." (Basically, a properly filled out DMCA form)

            "After the notice has been complied with the OSP must take reasonable steps to promptly notify the alleged infringer of the action.[17] Note that the OSP is not prohibited from doing so in advance, only required to do so afterward."

            AFTER. The DMCA doesn't say the service provider has to contact the alleged infringer first. Most of them will attempt to do so after they've pulled the content.

             

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            Mike Masnick (profile), May 13th, 2013 @ 4:09pm

            Re: Re: Re: Re:

            No it does not. A service provider who gets a DMCA notice about content is suppose to contact the user or account holder in question and given them time to reply.

            That's not true. That's not what the law says.

            Some ISPs choose to do that, but the law tells them to take it down first, not give them time to reply. It's "notice and takedown." What you're describing is "notice and notice" with has some interest but is not the law.

            If you are going to make shit up, at least blame the right parties


            I could say the same to you.

             

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            Anonymous Coward, May 13th, 2013 @ 6:15pm

            Re: Re: Re: Re:

            Seriously, if people being allowed to post anonymously ruffles your horsefeathers so much, why not post here under your real name? Too chicken?

             

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      Anonymous Coward, May 13th, 2013 @ 3:00pm

      Re:

      and how exactly does a penalty of damages IF you successfully win your fair use arguement translate into
      "fair use and you can't find me nyahh nyahh"

       

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      DH's Love Child (profile), May 14th, 2013 @ 9:38am

      Re:

      I disagree. DMCA explicitly states that fair use must be taken into account. The **AA's essentially don't believe in fair use, so they don't ever take it into account. More importantly, an automated system has no way of determining if something is fair use.

      Also, a BIG problem with the notice/counter-notice system is that it HEAVILY favors the alleged rights holder. It has been used in the past to muzzle speech.

       

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    gorehound (profile), May 13th, 2013 @ 10:59am

    I Boycott all Content that Comes from these MAFIAA Companies.I hate them and have hated them for Decades.Of course they would watch this Case and even say some things on it.They do not like the idea of Fair.
    they are Greedy and they are Predators.
    Here's Hoping that like the Dinosaurs they do go Extinct.
    Meanwhile what Money I do have to spend will be best served by Purchasing and Supporting the Non-MAFIAA Art.

     

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    Anonymous Coward, May 13th, 2013 @ 11:27am

    3 things:

    - MPAA is a lobbyist group representing mostly Hollywood studios. They are purposefully twisting reality to serve their members in the best way possible. That is their job!

    - The Lenz case was a local California district court: There is not much precedence from that in a local district court of Massachusetts!

    - The Rossi v MPAA (still not in the correct jurisdiction, but at least an appeals court) came to the conclusion that, "good faith belief" imposes no objective standard or review. Rather, it creates a subjective standard. Also, it states, "the absence of a genuine issue of material fact regarding MPAA’s violation of the DMCA"

    On the whole, I think MPAAs arguments are more than usual lacking in substance. All of their ramblings is based on building the judge to use the Rossi-case while putting the Lenz-case in the bin. The rest of their "evidence" is a lot of manipulative one-sided crap with enough resemblance to reality to be seen as "truth" in the eyes of court. I hope the judge thinks twice before applying MPAAs brief to the judgement since there are so many logical leaps (lack of relevance or context) in their evidence that it is very problematic to use.

     

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    Anonymous Coward, May 13th, 2013 @ 11:58am

    Considering Fair Use? That be cray cray.

     

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    Greevar (profile), May 13th, 2013 @ 12:24pm

    The problem is property.

    This whole storm of excrement stems from a distorted sense of property. The idea has been drilled into the head of just about every person today that, if you make something, you own it. However, this rationale forgets or disregards the fact that these works were built from the common wealth of human culture. That's something that belongs to no single person exclusively and to apply property concepts to works derived from such resources is an outright theft against every living person on Earth. Copyright is the legalized theft of human culture for the exclusive benefit of a select few.

    The whole idea that we have specifically defined "authorized" uses (i.e. fair use) as opposed to absolute liberty in their use is nothing short of a cognitive distortion. I don't have to pay someone for the air that I breath, it belongs to anyone that wishes to use it. Yet, every living thing (including humans) contribute to the continued manufacturing of breathable atmosphere. Unfortunately, people still cling to this idea that they should have property rights over something that belongs to everyone equally and be allowed to extract payment for its existence. It should be free to access and use in new works at the moment of publishing.

    Anyone with a capacity for rational critical thought should be able to see that the moment something is published, any hope of restricting the distribution of copies goes right out of the window. Anybody that tries to control works after publishing is a fool or insane. You'd have about as much luck controlling a published work as you would trying to recollect the feathers from a pillow torn open in the middle of a hurricane. Nevertheless people still try to turn intangible, abundant goods into discreet, exclusive property. A critical thinker would look at the issue and realize that selling published copies is a really bad business plan and that the real exclusive value is in the process of creating the works in the first place. Thus publishers have built an industry around a model that was never truly viable to begin with and they're probably freaking out because they see themselves becoming less relevant as time goes on. Neither law nor technology can change the nature of information as copyright and DRM repeatedly fails to change it. The moment you make information impossible to copy, it becomes unusable. Then, it's worthless.

     

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    Anonymous Coward, May 15th, 2013 @ 2:20am

    um, I hate to say this, but you have what an affirmative defense is wrong. An affirmative defense means you are essentially saying "yes, I did X. But, it does not break the law because Y" In other words, you are saying yes, I did copy X work, but it is not infringing because it is covered by fair use.

    Or, to put it even simpler, authorization is actually an affirmative defense too.

    Also the MPAA actually have a point. there is some caselaw on 512(f), and that is that 512(f) is supposed to be for cases where the copyright owner lied. The MPAA's argument is that 512(f) only applies if the copyright owner sends a DMCA notice when it knows there is no infringement.

    or, to put it simpler, 512(f) not a penalty for an incorrect DMCA notice, it is a penalty for a malicious DMCA notice. The difference is important. Merely being wrong about the link being infringing ( yes, I know it isn't the link itself that is infringing. please drop that issue, since I mean what can be accessed via that link) is not cause for penalty; it is in sending a DMCA notice where it is blatant there is no infringement.

     

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    Anonymous Coward, May 16th, 2013 @ 9:26am

    I wish all the articles about this lawsuit didn't refer to it as a silly fight between bloggers. This lawsuit is about a proponent of an ideology that causes measurable harm attempting to silence a critic because the facts are not on her side.

    I understand that this is techdirt, and maybe the details of the case aren't important to you, but this is an important issue. Anyone who'd like to read through her blog will see that Dr. Amy reads and understands the literature, sites her sources, and presents well-reasoned (albeit caustic) arguments against the natural birthing culture and the preventable deaths it causes. There is a reason why homebirth advocates hate it when she notices them.

    People who are vocal about skeptical thinking and rationality are always being attacked by those who make money selling snake oil. I don't think 'silly' is the word I'd use to describe that.

     

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