Big, Confusing Mess Of A Fair Use Decision Over DMCA Takedowns

from the wait,-what? dept

Some potentially good news this morning -- which may be undermined by the fine print. After many years of back and forth, the 9th Circuit appeals court has ruled that Universal Music may have violated the DMCA in not taking fair use into account before issuing a DMCA takedown request on a now famous YouTube video of Stephanie Lenz's infant dancing to less than 30 seconds of a Prince song playing in the background. Because of this, there can now be a trial over whether or not Universal actually had a good faith belief that the video was not fair use.
This case has been going on forever, and if you've watched the video, it's kind of amazing that a key case on fair use should be focused on that particular video, where you can barely even make out the music. The key question was whether or not Universal abused the DMCA in not first considering fair use before sending the takedown. This is fairly important, because, of course, DMCA takedowns suppress speech and if fair use is supposed to be the "pressure valve" that stops copyright from violating the First Amendment, it has to actually mean something. Section 512(f) of the DMCA says that the filer of a DMCA notice may be liable for damages for "misrepresentations," but historically that has been an almost entirely toothless part of the law (in part because of earlier rulings in the Lenz case). People hoped that would change with this ruling, and while the beginning of the ruling suggests 512(f) is getting teeth, the end yanks them all away.

The ruling in the 9th Circuit starts out great, but starts getting iffy pretty fast.
Her claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.
Sounds good, right? Anyone sending a DMCA notice needs to take fair use into account before sending a takedown. That may be trouble for all of those automated takedown filing systems out there, many of which we've written about. The court also reiterates that fair use is not "allowed infringement," but rather it's not infringement at all. This is also important (even though it says that directly in the law, many people pretend that it's just an "allowed" infringement). The court is not impressed by Universal Music's defense in the case, in which it argues that fair use is "not authorized by law" because, as Universal falsely claims, it is merely a "defense" to infringement. The court says that's wrong:
Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.”
So, that's all good. But... the details matter, and from that point on... they're weird. The court points to the earlier ruling, saying that the copyright holder "need only form a subjective good faith belief that a use is not authorized." Thus, as long as the issuer can come up with some sort of argument for why they didn't think it was fair use, they're probably safe.
As a result, Lenz’s request to impose a subjective standard only with respect to factual beliefs and an objective standard with respect to legal determinations is untenable.
And because of that, the court leaves a big out for just about any copyright holder. It says the court has no place in questioning how the copyright holder decided whether the use was authorized or not:
To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.
The court says a copyright holder can't just "pay lip service" to the idea that it checked on fair use, but in the same paragraph admits that, well, it basically can. Even worse, it says that forming a "good faith belief" doesn't require actually investigating the details:
In order to comply with the strictures of § 512(c)(3)(A)(v), a copyright holder’s consideration of fair use need not be searching or intensive. We follow Rossi’s guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content.
So.... huh? (1) You need to take into account if it's fair use or not and you need to show a "good faith belief" that it's fair use, but... (2) you don't actually have to investigate anything, and the court cannot review your reasons for having a good faith belief. That's not a loophole. It's a blackhole that collapses 512(f) in on itself.

From there, it actually notes that automated takedowns... may be fine:
We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use. Cf. Hotfile, 2013 WL 6336286, at *47 (“The Court . . . is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.”). For example, consideration of fair use may be sufficient if copyright holders utilize computer programs that automatically identify for takedown notifications content where: “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety . . . is comprised of a single copyrighted work.”
So, uh, what? Automated takedowns may be fine because that's sort of a way to consider fair use because... no reason given. That is not at all helpful.

On a separate note, the court confirms that the trial cannot move forward by arguing that Universal had "willful blindness" about the likelihood of fair use in the case, because Lenz didn't really show that Universal had willful blindness. So that's another dead end.

Finally, the court rejected Universal Music's claim that Lenz had to show monetary damages in order to recover damages under 512(f). The court says 512(f) spans more than just monetary damages. Of course, that's almost entirely meaningless in a world in which everyone has an out through "subjective good faith" that doesn't even require investigating anything.

So this is a ruling that looks good up top, but gets bad as you read the details. There is a dissent, from Judge Milan Smith, pointing out some of the problems with the majority ruling, and the loophole that it creates. As the dissent notes, stating that something is infringing when you haven't done any fair use analysis is a misrepresentation, and 512(f) covers misrepresentations. So, in the end, a possibly important ruling is undermined with a massive loophole, which likely will lead to a continuing barrage of DMCA takedowns, including automated takedowns that suppress speech. That seems... wrong.

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  • identicon
    Haggie, 14 Sep 2015 @ 11:08am

    An automated system is no more able to determine fair use than it would be able to determine what image is pornographic.

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    • icon
      DannyB (profile), 14 Sep 2015 @ 2:00pm

      Re:

      Actually an automated system might be better at determining whether an image is pornographic than a system could be at determining if an image is infringing, or is fair use.

      The determination of pornographic is determined merely by the content.

      The determination of fair use requires information not within the content (image, text, video, etc). How does the use affect the market value of the work? How similar is it? How much of the original work does it include or appear to include?

      Computers can already determine whether an image is of a car, or a dog, or a person in a black shirt with a guitar.

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      • icon
        MrTroy (profile), 14 Sep 2015 @ 11:24pm

        Re: Re:

        The determination of pornographic is determined merely by the content.

        orly? Is the venus de milo sculpture pornographic? What about a photograph of a woman in the same pose? Does it matter if it's in a magazine or a textbook?

        Heck, people argue all the time about what's pornographic (I know it when I see it), why would an algorithm do any better?

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      • icon
        PaulT (profile), 15 Sep 2015 @ 3:26am

        Re: Re:

        "The determination of pornographic is determined merely by the content."

        Not really. There's a huge subjective matter, and that's even before you get to the shaky ground of different jurisdictions, nationally and internationally. It's well documented that it's very hard even for a human to determine a pornographic image with any degree of consistency ("I know it when I see it"). If a human being can't accurately define "pornography", how does an algorithm?

        "Computers can already determine whether an image is of a car, or a dog, or a person in a black shirt with a guitar."

        Those are all black & white, objective things that have a concrete definition. They may also be able to work out if a picture is of a naked person. They would not necessarily be able to determine if the picture of the naked person is "pornographic".

        Then you get to the fun subtleties - that person in a black T shirt with a guitar - are they wearing anything else? How are they posed - are they just playing the guitar normally, or are they posed in such a way to appeal to a specific guitar fetish (rule 34, I'm sure one exists that would cross the line with just those items you mentioned)? Then, whose opinion would you based the "pornographic" determination on - a prude who thinks that pop videos are basically pornography or someone who would consider anything less than outright intercourse to be OK?

        It's a very slippery slope, same as determining fair use. The information is not only not contained in the image alone, it's subject to the vagaries of subjective human opinion.

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  • identicon
    Anonymous Coward, 14 Sep 2015 @ 11:13am

    We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.

    Why can we NOT punish these idiot assholes for the fuctards they are?

    I am gonna say, so don't taze me bro... but there outta be a law!

    A law that says when a comment like this is uttered and subsequently revealed to be the product of a wholesomely ignorant person in power then it should be assumed that the Judge has "knowingly AND intentionally" made a bad faith judgement deserving of complete removal from being a judge WITH PREJUDICE, never being able to serve again!

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  • identicon
    David, 14 Sep 2015 @ 11:17am

    Good faith strikes again.

    Why is it that big money and big government can claim "good faith" as an absolute justification for every systematic violation of citizens' rights while the citizen don't have similar leeway?

    Shouldn't government and corporations with big legal departments be exactly the parties that can be reasonably expected to know the rights of people? It's their principal job description to deal with the rights of people, after all. So why are they, of all people, exempt from responsibility?

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    • icon
      Violynne (profile), 15 Sep 2015 @ 3:06am

      Re: Good faith strikes again.

      Here's the answer to the question: absolute power corrupts absolutely.

      This court knew exactly what it was saying when it dolled out the case where Universal has to go to trial.

      Nothing about this case had anything to do with copyright other than the court to wash its hands of it.

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    identicon
    Anonymous Coward, 14 Sep 2015 @ 11:19am

    But your position would just as automatically hang Universal Music when it IS their content!

    This is not difficult. -- BUT FIRST, I remind that if the EFF (I just checked: yup, EFF) wasn't providing free lawyering, then Lenz wouldn't bother. She has no real stake in this. If the extent of her injuries in life is having a video taken down, she's incredibly lucky. The amount of time squandered on this is ridiculous in full Masnickian sense -- and may end up exactly counter to what you and EFF want! I keep telling you boy-clowns, lawsuits can make the wrongs you see permanent! Don't mess with courts when fundamentals aren't at stake!

    Anyway, there's a "triable" question here, but to me Universal Music has not in any way abused DMCA. I predict that automated take-downs will become yet more entrenched de facto law. Can't see any other way to support copyright... Of course, YOU don't want that! -- The use of content gives Universal Music authority to DMCA without having to hem and haw over whether might be fair use. -- Let the makers of videos hem and haw too! THAT'S THE PRACTICAL COMPROMISE OF COPYRIGHT LAW. Consumers get products and content makers get rewarded. Those are going to conflict at point. If Lenz has a right to use, then so does Universal Music to protect!

    Again: quit going to court, EFF! LEAVE AMBIGUITY, IT'S OFTEN BETTER.


    Sixth try. Opposition here faces, er, opposition.

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    • identicon
      Anonymous Coward, 14 Sep 2015 @ 11:23am

      Re: But your position would just as automatically hang Universal Music when it IS their content!

      The use of content gives Universal Music authority to DMCA without having to hem and haw over whether might be fair use.

      To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f).

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    • identicon
      Anonymous Coward, 14 Sep 2015 @ 11:36am

      Re: But your position would just as automatically hang Universal Music when it IS their content!

      Let the makers of videos hem and haw too!

      That's what's happening with this case, yet you appear to be trying to discourage exactly that.

      LEAVE AMBIGUITY, IT'S OFTEN BETTER.

      If you're Universal, it sure is.

      Sixth try.

      Well, at least you appear to have time to waste.

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    • identicon
      Anonymous Coward, 14 Sep 2015 @ 11:45am

      Re: But your position would just as automatically hang Universal Music when it IS their content!

      Oh yeah, it's fine if any random company can remove your content because you don't want to spend hours upon hours and thousands of dollars defending yourself in court.

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    • identicon
      Anonymous Coward, 14 Sep 2015 @ 11:48am

      Re: But your position would just as automatically hang Universal Music when it IS their content!

      The amount of time squandered on this is ridiculous...

      The same can be said for your comments.

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

    • identicon
      Anonymous Coward, 14 Sep 2015 @ 11:56am

      Re: But your position would just as automatically hang Universal Music when it IS their content!

      Look it does not matter what you like or don't like. That's the ruling so deal with it. Also a bit of a protip, when your against the EFF you're in general in the wrong. Except we all know you're a closet Fascist, so go ahead and rail on about how a child dancing to some music is a major threat to a multi billion dollar industry.

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    • icon
      JMT (profile), 14 Sep 2015 @ 7:50pm

      Re: But your position would just as automatically hang Universal Music when it IS their content!

      "This is not difficult."

      True, it shouldn't be difficult to see that the original video did caused zero harm (maybe even less than zero harm) to Universal or Prince, and yet here we are thanks to their actions.

      "... if the EFF (I just checked: yup, EFF) wasn't providing free lawyering, then Lenz wouldn't bother. She has no real stake in this."

      We all have a stake in this, because we're all affected by the DMCA and its abuses, so you the fact that Lenz probably would not have been able to fight this on her own is irrelevant.

      "The amount of time squandered on this is ridiculous..."

      Agreed, see my first point.

      "I keep telling you boy-clowns, lawsuits can make the wrongs you see permanent! Don't mess with courts when fundamentals aren't at stake!"

      Clearly some people believe the locking up of culture by corporates is a pretty important issue.

      "...but to me Universal Music has not in any way abused DMCA."

      The DMCA says fair use must be considered. Clearly Universal never consider fair use when doing mass, automated takedowns. Not sure how that's not abusing the DMCA.

      "I predict that automated take-downs will become yet more entrenched de facto law. Can't see any other way to support copyright..."

      The fact that you can't see any other way to support copyright is a reflection of your limited abilities, not a state of reality.

      "The use of content gives Universal Music authority to DMCA without having to hem and haw over whether might be fair use."

      The DMCA states the exact opposite, which is why this is such a bad ruling.

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    • identicon
      Anonymous Coward, 15 Sep 2015 @ 1:16pm

      Re: But your position would just as automatically hang Universal Music when it IS their content!

      Ha Ha, your side lost.

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  • identicon
    Anonymous Coward, 14 Sep 2015 @ 11:19am

    Notifying infringement should have never been gotten out of a court's hands.

    Most countries have a "safe harbour" clause that makes you not liable for copyright infringement on your network as soon as you remove the content once you know about it.


    The thing is that, logically speaking, only a judge should have the power to determine wether something is legal, illegal, infringing or not infringing. Not even lawyers or authorities have the legal background to do so, that's why judges are judges, at least in our society. Of course, you'd need some tech savvy judges, not the usual ones to whom the most advanced technology they know is the mallet they use.

    The logical path a OSP (Online Service Provider) should take when a copyright holder tells him that a file is infringing is to tell the holder to bring the case to a court, as those are the people properly trained to determine such things. Then, once the court decides about it, if it's infringing, the OSP will take the necessary steps.

    The thing is that, "I don't know how it happened" but if an OSP does the logical thing, it seems that he hasn't kept up to the safe harbour exceptions because, you know, it seems that a copyright holder telling you that a file is infringing is enough to consider that a file is infringing, even if the guy that is assuring you so has been paid to remove them.


    And yeah, considering the size and number of links that are supposedly infringing in some way, going to a court over each of them sounds slow and expensive.

    But you see, that's how it should be. Censoring should never be easy or cheap. Never. Even for the most heinous things, it's a court the one that should take care of it, not some guy that is risking his sanity (I read somewhere that the guys that check CP links for Google don't have it easy) by what he has to watch or check.


    And yeah, that would make the DMCA system pretty useless. Not it has never been to succesful, you know.

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    • identicon
      Anonymous Coward, 14 Sep 2015 @ 11:38am

      Re:

      That was the entire point of the DMCA, the companies just love being able to threaten everyone without any risk to themselves.

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  • identicon
    Chris Brand, 14 Sep 2015 @ 11:19am

    The algorithm part looks not unreasonable to me

    If you look at the example given, they seem to be saying that it is possible to tailor an algorithm narrowly enough to effectively consider fair use. It does seem hard to envision a fair use of a work where the entire audio and video match the copyrighted work (although the example they give does seem like it would also catch the use of a snippet in a review).
    Seems like you could still run into problems if the filter you use to auto-generate DMCA takedowns was too broad (e.g. "any file with X in the name").

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  • identicon
    Anonymous Coward, 14 Sep 2015 @ 11:31am

    Google is forced to employ people to deal with this crap while the criminals spam their crap because why would they be forced to employ people to actually do the work properly.

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  • identicon
    Anonymous Coward, 14 Sep 2015 @ 12:03pm

    Damages? Isn't most fair use content without profit? Everything about this ruling sounds more like an agreement between buddies.

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    • identicon
      Anonymous Coward, 14 Sep 2015 @ 1:41pm

      Re:

      not always - see the quizno's article and damages are'nt your profits, its what damage you did. Even if you did damage the brand by using the trademark to critize them, its still fair use.

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  • identicon
    Jane, 14 Sep 2015 @ 12:15pm

    you don't actually have to investigate anything
    It doesn't say that. It says
    formation of a subjective good faith belief does not require investigation of the allegedly infringing content
    If this would mean, for example, examining the metadata (length, title, uploader, description) - just not the file itself - I'd say that that isn't too problematic. But since they didn't specify what you should investigate...

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    identicon
    Anonymous Coward, 14 Sep 2015 @ 12:43pm

    "Automated takedowns that suppress speech"

    LOL. You're hilarious, Masnick. Pure comedy gold here, folks.

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  • icon
    That One Guy (profile), 14 Sep 2015 @ 4:57pm

    Beating an already dead horse

    To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f).

    So if they ignore the 'requirement' that they consider fair use, then they're in violation of the law. Sounds good...

    We follow Rossi’s guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content.

    The only possible way to even begin to consider whether or not something is fair use is to investigate it, and yet here the court is saying that they don't have to do that.

    If individuals and companies are allowed to determine fair use without ever even investigating the item in question, then it should hardly be a surprise when every time the copyright holder finds against fair use, because why not?

    And thanks to this bit...

    If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.

    ... Someone can just claim that they did consider fair use, and decided against it, and the court can't do a thing, even when something is blatantly fair use.

    The DMCA 'penalties' were already pathetic, this ruling just highlights how laughable they are. There is no penalty for bogus DMCA claims, because thanks to cases like this, it's impossible to ever meet the requirements to trigger them. At this point they could remove section 512(f) entirely and there would be no difference at all.

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  • identicon
    Anonymous Coward, 14 Sep 2015 @ 6:04pm

    average_joe and out_of_the_blue just can't stand it when due process is enforced.

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  • identicon
    Anonymous Coward, 14 Sep 2015 @ 7:58pm

    Common sense... fails, yet again.

    (3) nearly the entirety . . . is comprised of a single copyrighted work.”

    Wouldn't it be great if the algorithm behind automatic takedowns was actually capable of utilizing common sense.

    Such an occurrence if it ever were to happen would be ground breaking. Understandably AI tech would perfect for record labels purpose of wide scale efforts to inform certain persons of interest.

    But then again, their current program uses only cold unforgiving logic, not common sense. Soo.. back to square one.

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  • identicon
    Anonymous Coward, 14 Sep 2015 @ 9:01pm

    If they only have to show "good faith" then there is no copyright , because everything can be considered fair use by both parties.

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  • icon
    Whatever (profile), 14 Sep 2015 @ 10:50pm

    The concept of accepting automated take downs I think is a very valid concept, in many instances. It seems that the courts understand the issues of the sheer volume of potential violations, and that there is no real way to keep up with the tide and not have to resort to some sort of automated system.

    Moreover, they seem to be agreeing with the basic concept that the burden on the right holder (both in time and legal consequence) should be larger than that of the potential infringer. If it takes a few seconds to infringe, it shouldn't take much more than that for the rights holder to assert their rights. Considering each individual use against the full fair use standard would be time consuming, and would likely still lead to major disagreements as the standards of fair use are often on judgement rather than legal absolutes. Yes, there are a few very clear cases, but put on a website that runs advertising and gains income from the works in question generally muddies the waters for almost everything except straight news and reviews.

    Overall for me it's a judgement that is based on the reality of a huge firehose of unauthorized use on one side, and a huge firehose of DMCA / takedown notices on the other trying to keep up. Much like Mutually Assured Destruction, things won't change until both sides slow down... and that is unlikely to happen.

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    • identicon
      Anonymous Coward, 15 Sep 2015 @ 12:26am

      Re:

      I disagree with you. I'm the one who commented about the courts having to take care of such things (commment #5).

      First, because neither automated systems, nor authorities (like the police or special agencies), should take care of determining whether something is legal or not. That's the role society gave to the judges, and that's the base of our society.

      Censoring things should be hard, even in clear cut cases; what's a clear cut case today it might be something legal in a few years (particularly in a matter like copyright, people are starting to doubt it, even government officials). It happened with being gay: we got the case of Alan Turing that was convicted for that. Nowadays no democratic country would punish someone for being gay, and in fact, we are criticizing other countries (like Russia), for doing so. If breaking that law and speaking against it would have been impossible, nowadays gays would have been as persecuted as before.

      I agree that there aren't enough resources to take care of all the infringing, but then, that's a message the society is giving as a whole that the concept of copyright is outdated and should be changed (particularly in the form that it currently has).


      Laws and punishments should never been taken care as a bulk, not automatically. Never.

      I'm even against traffic fines, that are never taken to a court (unless they are really serious, like driving while drunk); and there you have the fact that there are lives on the line and not only economic interests, that somewhat balances the fact.

      The same as we reject filters for our browsing (that roughly are an automated system that monitors us and blocks unauthorized and illegal content) and we call them police state measures, we should reject automated systems too, because in essence, they are something similar (instead of monitoring you, they monitor the web, but the effect is the same).

      As you say, if there is a huge firehose of unauthorized use on one side, then laws should be changed so that use is authorized; because that's the message people are giving, not from what they say, but from what they do.

      Remember that copyright is just a monopoly/exclusivity right that the society gives to an individual (no, it's not a property right, actually, it denies others of their property rights), supposedly to promote cultural investment. Now society is reversing that through their actions (when you have millions of DMCA notices a day, that's a pretty much clear message), and it's telling the authors to look other ways of promoting that investment that don't imply limiting copying or sharing such works (like netflix is doing, access, ease of use and/or convenience are important factors for many people).

      Laws about that should have been changed long time ago, if the representatives truly represented the people that voted for them and not the people that paid their campaigns (and bribes). As long as such corruption exists, laws won't be changed to suit what the society wants.

      The alternative is turning this into a police state where everything you do is filtered and monitored so that you can't breach the law. And remember that we are telling off China for doing precisely that.


      tl;dr: if the infringement is so large that courts can't keep up with it, then laws should be changed so that such infringement stops being an infringement.

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      • identicon
        alan turing, 15 Sep 2015 @ 1:17am

        Re: Re:

        I'm with you but you need a ghost writer.

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      • icon
        Whatever (profile), 15 Sep 2015 @ 1:39am

        Re: Re:

        Let me give you a perfect example of why your logic doesn't work out.

        The law isn't something that is only decided in a court of law. It's something we live with every day. If someone invades your private property, you can have them removed without first getting a court order. In the US, it's not unusual to pull out a firearm and take a shot - all legal, of course. No judge or jury required to APPLY property rights in those cases, just a law that says what you may do. The courts may disagree with you later, but it's a huge grey area. Don't believe me? Go randomly busting into someone's house in Texas and see what you get.

        "As you say, if there is a huge firehose of unauthorized use on one side, then laws should be changed so that use is authorized; because that's the message people are giving, not from what they say, but from what they do. "

        Clearly that isn't a good way to operate. It borders on lawlessness. Can you imagine if everyone just decided that red lights were meaningless? That paying for the subway or dinner was just an annoyance? By your logic, if enough people do it, the laws should be changed to give us free food and make everyone stop on green lights. How silly would that be?

        "The alternative is turning this into a police state where everything you do is filtered and monitored so that you can't breach the law. And remember that we are telling off China for doing precisely that. "

        Actually, the alternative is a thing called self control and personal responsibility. It's the thing that keeps us waiting at the red light, driving on the right side or the road, paying for dinner, paying for the subway and not randomly bursting into other people's houses. Sadly, that concept is quickly slipping in the US, to the point where some (including an article in the WSJ) suggests that lawlessness is upon us.

        Without respect for each other (yes, two way street), none of it works. Graffiti on building's walls and people pissing on your back step are just signs that respect for others has all but disappeared.

        "tl;dr: if the infringement is so large that courts can't keep up with it, then laws should be changed so that such infringement stops being an infringement."

        I hope for your sake that all of your neighbors don't decide that your house or whatever isn't perfect for shooting practice. After all, if they are all doing it, they should just change the laws so it stops being a crime!

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

        • icon
          PaulT (profile), 15 Sep 2015 @ 4:05am

          Re: Re: Re:

          "It's something we live with every day. If someone invades your private property, you can have them removed without first getting a court order."

          Yes, but you can't get someone removed from the public street outside if they have valid reasons for being there. You certainly can't get people removed from property you don't own just because you say so. Yet, that's the equivalent of what's happening in these cases.

          "After all, if they are all doing it, they should just change the laws so it stops being a crime!"

          Are you completely ignorant of the concept of civil disobedience and how many of your freedoms exist because of it, or are you just determined to make the most ridiculous analogies to wave away valid criticism of these corporations.

          Wait, I just noticed the login name. Guess I answered that one for myself.

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

        • identicon
          Anonymous Coward, 15 Sep 2015 @ 6:27am

          Re: Re: Re:

          First, let's be straight: you're mixing here a lot of things. You're mixing copyright infringement with people being shot, with people risking their lives or with people stealing scarce goods (like food, transport and such).

          For starters, the reminder:

          https://www.youtube.com/watch?v=IeTybKL1pM4

          Secondly, the society as a whole agrees on not doing on the latter issues, while copyright infringement is a pretty controversial one.

          De facto, people are ignoring it (while you don't see people shooting each other, ignoring red lights en masse or entering into other people's homes). Many videos that are watched on youtube are pretty infringing, torrents and streaming make for a big chunk of the traffic on the net and I could go on.


          Regarding that police you mention, his actions would get a review in a court afterwards to determine if they were proper, and for his own good, they'd better be (even if it was just entering in a home).

          Most DMCA notices aren't reviewed because the person involved doesn't have the economic means. Also, the flaw they got is that someone says it's infringing and automatically they have to prove their innocence, when it's the other part the one that has to that he is not guilty. That goes against the "in dubio pro reo" principle, that is the base of the judicial system.

          See that there is even the fact that fair use isn't checked and punishment given to those abusing the DMCA, "because of their rights" and you even claim that they should keep that carte blanche, even if they break a few eggs in the process.

          And yeah, I still think that anything that involves censorship (yes, DMCA involves censorship) is to be decided by a judge, because they are the people that are trained to do so.


          "Clearly that isn't a good way to operate. It borders on lawlessness. Can you imagine if everyone just decided that red lights were meaningless? That paying for the subway or dinner was just an annoyance? By your logic, if enough people do it, the laws should be changed to give us free food and make everyone stop on green lights. How silly would that be?"

          No, actually, that's the way to operate. Laws are made to serve people, not the people made to serve laws. If a majority of the society wants, laws are changed so that it suits the society.

          If the majority of the society claims and acts that the red lights shouldn't be followed, or that dinners aren't to be paid or that subways fares neither, then that's it. Again, the society decides the laws, not the reverse.


          And upon what the society has told them, it's up to the business owners and people, to act based on that.

          Yup, that's it. The society sets up the laws, the laws the society wants, and the businesses have to adapt to them. Not the reverse, laws don't have to adapt to what businesses want.

          See that the reverse is happening nowadays: they are trying to make it so that touching the software of your car is illegal because of copyrights (GM and John Deere, and they even brought the EPA on it, the story is on TD, read it). Apart from tuning your car, there are plenty of cases where fixing your own car requires to reset that software at least. Passing such a law would make de facto illegal repairing your own car, because you wouldn't be allowed to reset the software.

          Years after that, if someone said he wanted to fix his own car instead of having to go to the brand workshop because of copyrights, we would think it's perfectly normal not to be able to do so, because, you know, they got to make the money and it's their right to do so (that's what they'd claim).

          And you see, nowadays we consider it's our perfect right to fix our car and it sounds outrageous. But yeah, some people are trying to take it away from us because of copyright (lol, they could even stretch the argument by claiming that a repaired car is a derivative work).

          And to be honest, the millions of DMCA notices that are sent (and considering that even then, you can find most of the stuff) means that there are millions of people sharing the stuff. In other words, they are telling the copyright holders to go take a hike.

          And I'd say if the cars thing happens, people will tell the same to GM, John Deere or whatever. They'll find the way of getting the software and fixing their own cars.


          Want a similar example of laws being changed to adapt to what the society does? Drugs. A few decades ago, drugs were bad and everyone agreed on that. Nowadays, there are governments that have toyed with the idea of legalizing them, in part because there is a majority of the population that has done (and is doing) it and in another part, because, to be honest, law enforcement can't keep up with it.

          People may still agree that they are bad for your health and whatnot, but most people are realizing that is a quite futile war (like the Dry Law in the 20's, that was also removed due to the society ignoring it) and they are starting to think that the best way of reducing their use is to legalize them, lol.

          Or at least, people'll get better quality drug and not adulterated ones that are riskier for you. Because one of the consequences of that War on Drugs is that you pay gold for things that are shit, at least according to people who are on it.

          Of course, the interest in keeping them illegal is mainly because there are a lot of people (including politicians and such) that are getting rich from them being so scarce.


          And yeah, the Dry Law I mentioned before is the same. You see, most people agree that getting drunk is a bad thing; but they still want their access to the alcohol.


          You may agree that they are good or bad laws; but the principle is the same. The society should have the laws they want, not the laws others decide they are good for them.

          "Actually, the alternative is a thing called self control and personal responsibility."

          For starters, that alternative will never happen.

          And well, considering that we are talking about my own property (my computer) and in my own home. I'm not sure if we should talk about self control here, particularly when there is the fact that I disagree with the copyright itself.

          First, because I don't think that someone that wrote a book has the right to decide what you do with your computer, or to who do you give access to it, or even to know about it. And now, I don't believe that he's the owner, because he isn't the owner of anything. He's the author, and at most, he's the holder of a monopoly the society decided to give to him long time ago. And what is given, can be taken away.

          There is also the thing about how most works aren't scarce anymore (you can create 1 million copies in no time and almost zero cost per copy) and yet, the prices haven't changed significantly (or even a bit in some cases). Sorry, but that sounds pretty scammy to me: a PDF and a paperback book having similar magnitude prices is outrageous.

          Copyright is kept as it is not because the society still thinks like that, but because our representatives aren't doing their job (or well, they are doing the job they were bribed for). In most cases, people disagree with it (again, their actions speak for themselves).

          See how much people disagree that every time that a copyright related law is made in the world, this happens:

          - It's rushed through.
          - They only talk about it with the industries, never with the citizens.
          - They try to get the bills passed on holidays, or when the people are busy with other stuff.
          - They try to use every loophole to pass them: from committee approvals (happens in some countries) to fast tracks.
          - There is absolute secrecy if possible, specially on trade deals like ACTA (or TPP, TTIP, TiSA). If they could get approved that law as soon as it's brought up, they would do so.
          - Ever heard of the Disney and Bono Laws? Check them out why they are called like that, but there is something strange in holding the rights for something longer than what most property last (especially, without needing maintenance of any kind).

          It's strange, if a law is so good and so supported, why they need to use such tactics? Wait, see what they say:

          https://www.techdirt.com/articles/20141030/16291028989/new-zealands-trade-minister-admits-they-k eep-tpp-documents-secret-to-avoid-public-debate.shtml

          http://keionline.org/node/706

          Considering the need of such tactics to avoid public debate and people walking away, it seems that copyright isn't as widely supported as they claim.

          First if you want the people to respect a law, make it respectable. Using underhanded tactics, hiding it or only listening to one part to get it passed only tells us ignore it. I remember there was a quote about that thing somewhere, from one of the forefathers of the US and that.


          Don't expect self control from things people don't respect.


          And talking about self control further, remember that the ones that usually lack a lot of self control are the businesses themselves: if they see a chance to bleed their customers dry, they will take it gleefully.

          We can talk about trojans in your computer (Sony), about overpriced stuff, about stuff that isn't what it should be (you know, like those movies that look great on trailers and they happen to be a shit) and a lot of other practices that are a pretty shitty way of treating your costumers. Some are even suing their customers for writing bad reviews on their blogs. And that's when they don't cheat their customers right away.

          We see them as normal (and some as valid) practices nowadays, but that shouldn't be the case. And remember that many of those practices are prior to the internet.


          Another thing about self control: if you want others to have it, you should set some example.


          It's quite pathetic the fact that it was thanks to filesharing that services like Spotify and Netflix flourished, because before, even if they were able to, they wouldn't want to hear about it and wanted to keep ripping of their customers.

          A excuse many people give to download stuff is that corporations are bad and such. They also bring out how those rich actors aren't going to turn poor because of a few downloads (yet they are the ones that complain a lot). It's not mine (I disagree with copyright as a matter of fact), but I can't say I disagree with it either.

          Another pretty much sought out excuse is that people are doing worse things (watch TV, seek corruption cases, see how no one has gone to jail or how they are living in luxury there, specially after stealing 33M € from the State) and they aren't getting punished.


          This brings out another fact about self-control: don't expect to find self respect from the people, when their leaders, representatives and celebrities show zero to none self-control. They accept bribes, they steal money, they fraud taxes, pass and lobby for laws that only benefit them.


          So, self control? Our society is based on the lack of it, and that has been like that since centuries ago. And don't expect the small fries like us exercising it when the big fish are going all YOLO.


          "I hope for your sake that all of your neighbors don't decide that your house or whatever isn't perfect for shooting practice. After all, if they are all doing it, they should just change the laws so it stops being a crime!"

          Well, a lot of your neighbours decide that owning weapons is perfectly legal. We get quite surprised in my neighbourhood when we hear about shootings made by people in the US and we ask ourselves why don't you ban weapons completely, as in our neighbourhood where we don't have a person shooting 16 people with a semi-automatic rifle. We think that your neighbourhood is full of crazy psychos that carry weapons around.

          But you see, your neighbourhood decided that they'd rather have such weapons in case the government goes nuts, plus to be able to defend themselves, and that such freedom is worth having a few deaths here and there.

          You see, I rather agree with your neighbourhood on that point than with mine; but you see, the neighbours decided to keep people without weapons and I'm a minority. Yup, just the opposite of what happens with copyright: that a majority infringes it and another majority just doesn't care about it.

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

    • icon
      MrTroy (profile), 15 Sep 2015 @ 1:11am

      Re:

      The concept of accepting automated take downs I think is a very valid concept, in many instances. It seems that the courts understand the issues of the sheer volume of potential violations, and that there is no real way to keep up with the tide and not have to resort to some sort of automated system.

      As the other guy suggested, this exact logic applies just as well to DMCA violation as it does to copyright violations...

      The concept of automatically rejecting take downs I think is a very valid concept, in many instances. It seems that the courts understand the issues of the sheer volume of potential DMCA violations, and that there is no real way to keep up with the tide and not have to resort to some sort of automated system.

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

      • icon
        Whatever (profile), 15 Sep 2015 @ 1:44am

        Re: Re:

        Anyone who gets a notice SHOULD issue a counter notice and take action. They very much should (and I have, thanks!). The issue of course is most people try so hard to be anonymous that they are also unreachable, unable to answer basic questions and to claim their fair use rights.

        The true desire isn't to stand up for their rights, that is part of the problem. Instead of proudly signing their names to their work and standing up for themselves, for what is "right", they hide like petty criminals or schoolboys stealing trading cards from the local bodega.

        Hosting companies and "services" have no choice. If they want to reject claims, they better feel they are 100% in the right (and have the bankroll to fight it). Most of them won't do it, because they really don't want to waste money fighting for the rights of people who just don't give enough of a damn to fight themselves.

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

        • icon
          That One Guy (profile), 15 Sep 2015 @ 3:18am

          What's good for the goose...

          So hey, I think you and X number of other randomly chosen people(because who needs accuracy when demanding removal of content?) might be up to something nefarious in your comments, and from this point onward your comments should all be blocked as a result. If you want to contest this, feel free to provide your real name and contact information.

          If you don't feel like providing such information, I will assume it's because you feel like hiding like a petty criminal and/or acting like a schoolboy stealing trading cards, since clearly there exists no other possible reason someone might not want to provide personal information to random strangers due to automated accusations filed by bots/bored people behind a keyboard.

          Hosting companies and "services" have no choice.

          No, they don't, primarily because that's how the law is written. A hosting company either complies with a takedown request or they open themselves up to potential legal troubles.

          The risk/reward is entirely one-sided, providing no incentive whatsoever for a hosting company to refuse a DMCA claim, while hanging a hefty threat over their head if they decline to do so.

          If they want to reject claims, they better feel they are 100% in the right (and have the bankroll to fight it).

          Funny, you don't seem to think that the same certainty should apply to those filing the claims if your other comments are any indication. Automated take-downs? Not a problem? Automated refusals? Huge problem. Double-standard much?

          If those filing the claims don't have to actually check to make sure that what they are filing a claim against is infringing(otherwise known as what they are theoretically required to do), then those receiving the claims shouldn't have to bother checking before refusing, and they should face exactly the same penalties if they refuse a legitimate claim as those filing a bogus claim face, which is to say none at all.

          Most of them won't do it, because they really don't want to waste money fighting for the rights of people who just don't give enough of a damn to fight themselves.

          And again, no. Most don't fight DMCA claims because the law is utterly one-sided, providing all the incentive to take something down, and no incentive to leave it up. I imagine if hosting companies didn't have to face potential legal issues from refusing DMCA claims there would be a lot more refusals going on.

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

        • icon
          PaulT (profile), 15 Sep 2015 @ 4:07am

          Re: Re: Re:

          Any citations for that set of illogical claims, or was it pulled from your ass?

          Bear in mind that the majority of stories regarding false takedowns from YouTube are people who are very much public figures, whose details are well known to YouTube if not 3rd parties.

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

        • icon
          John Fenderson (profile), 15 Sep 2015 @ 6:12am

          Re: Re: Re:

          Do you really believe that people who choose to remain anonymous are behaving like petty criminals, "Whatever"?

          Ahem.

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

          • identicon
            Anonymous Coward, 15 Sep 2015 @ 6:47am

            Re: Re: Re: Re:

            Consider that Whatever, under the moniker of horse with no name, berated sophisticatedjanedoe for challenging the claims of porn trolls such as Prenda and Malibu Media under a pseudonym.

            Then his entire shtick falls apart.

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

            • identicon
              Wendy Cockcroft, 15 Sep 2015 @ 8:17am

              Re: Re: Re: Re: Re:

              His entire schtick is predicated on the unfounded belief that copyright is property. Keep that in mind when you answer him, it'll help you pull his arguments apart more quickly.

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

        • identicon
          Anonymous Coward, 15 Sep 2015 @ 11:35pm

          Re: Re: Re:

          Anyone who gets a notice SHOULD issue a counter notice and take action.

          I see you support the new US business model, get everybody in the world to pay for representation in the US courts.

          /s

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

    • identicon
      Anonymous Coward, 15 Sep 2015 @ 7:26am

      Re:

      as long as the 'signer' of the dmca is okay with perjury charges, there is no need to validate whether the content is actually infringing.

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

      • icon
        That One Guy (profile), 15 Sep 2015 @ 6:14pm

        Re: Re:

        Well, except for the fact that cases like this make it almost literally impossible for those charges to ever be brought against those that send fraudulent DMCA claims.

        At this point, as far as I'm aware, the only way someone could be punished under the DMCA for bogus claims is if the other side can prove, beyond a reasonable shadow of a doubt, that the sender of the DMCA claim knew something was fair use, and sent the DMCA anyway. Good luck proving something when the only evidence is inside someone's head, and they have every reason in the world to lie when asked.

        And with this case, where apparently the judges see nothing wrong with bots, which absolutely cannot judge fair use sending claims, and supporting the idea that you don't even need to check before sending a claim, even that slim chance goes right out the window. As I've said before elsewhere, at this point the perjury clause could be removed entirely and nothing at all would change, because the courts have made it impossible for it to ever be triggered.

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

        • icon
          Whatever (profile), 15 Sep 2015 @ 7:01pm

          Re: Re: Re:

          I think you need to go back and re-read the judgement. The courts are okay with bots only because (a) they understand that the volume is huge, and they seem to imply the point of (b) the ratios of infringement to fair use.

          The perjury clause is hugely important, but the standard is very high. There are many reasons. The most important is that DMCA as a concept is a way to allow for "oops, I infringed your work, sorry" without a lawsuit and without costs or punishment. The other side of that is "oops, I squished your fair use, sorry" that should (and is) given about equal weight. There is a balance here that is rarely addressed.

          The perjury clause is really there for people who intentionally set out to cause harm with false claims, not grey area "may or may not be" situations. Go back and review how fair use is determined, and you can see that it's an area where it's very easy to suggest "may be fair use" but almost always equally easy to say "may not be either".

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

          • icon
            That One Guy (profile), 15 Sep 2015 @ 10:36pm

            Re: Re: Re: Re:

            I think you need to go back and re-read the judgement. The courts are okay with bots only because (a) they understand that the volume is huge, and they seem to imply the point of (b) the ratios of infringement to fair use.

            Bots cannot determine fair use. Full stop. A bot is able to determine if X is present(and even then the accuracy leaves much to be desired), they have no way of making a fair use judgement, which is required to be considered for a DMCA claim, something even the judges in this case state(while nullifying it elsewhere by claiming that you don't have to investigate before filing), and yet it is something that bots cannot do.

            "It's just too hard to do it right" is not a valid excuse. Lots of people speed, cops can't catch them all, does that mean it would be acceptable to send out speeding tickets at random? Who cares if innocent people have to go to court to defend themselves if it catches a few people speeding, right?

            "It takes too much work to make sure before filing a claim" isn't anyone's problem but the one sending the claim, they don't deserve to be able to skip the 'Aim' step and go straight to 'Fire' because of it.

            The perjury clause is hugely important, but the standard is very high.

            The correct term is 'impotent'. As in 'The perjury clause is impotent', because the standard is not 'very high', it's impossibly high, for reasons I've noted above. As long as someone claims to be the proper owner or representative of a given work, lets say A for this example, then they can issue DMCA claims on B, C, D and more with impunity, so long as they claim that it wasn't intentional, or the bots made an accident, both excuses of which I'm sure are very comforting to the owners of B, C and D, who now have to fight to have their content restored.

            Someone can file blatantly bogus claims(DNC official stream, Mars landing footage, Bird-song. Alternatively, if you think YT 'doesn't count', then Bot accuracy example, DMCA claim for censorship #1, DMCA for censorship #2), and as long as they do so via bot, there is no punishment whatsoever.

            The other side of that is "oops, I squished your fair use, sorry" that should (and is) given about equal weight.

            Should be, but clearly isn't. There are very real penalties for not taking down something when receiving a DMCA claim, but no real penalties for sending a bogus claim. The former opens you up to possible legal action, the latter carries no cost at all.

            There is a balance here that is rarely addressed.

            It's talked about all the time, by pointing out that there is no balance. People and companies can file bogus DMCA/copyright claims, whether maliciously or just indifferently, and they face no penalty for it. At most they might have to say "Oops, my bot made a mistake". Those who have their content removed wrongly face immediate penalties however, and if they want their content restored, they have to fight for it.

            You can take something down without going to court, but if the other person wants it back up, that requires going legal and unleashing the lawyers. If that's 'balance', it's the most lopsided version I've seen in a long time.

            The perjury clause is really there for people who intentionally set out to cause harm with false claims, not grey area "may or may not be" situations.

            If so it's doing a terrible job of it, while also ignoring the much bigger problem of negligent claims, brought about by automated bots and/or people who can't be bothered to check before demanding something be taken down.

            People maliciously demanding the removal of something that they know they don't have the rights to happens, but not nearly as much as people/companies who simply don't care whether they have the rights to something before demanding it be taken down, so focusing only on the former, while ignoring the latter is very much paying attention to a papercut while you ignore the internal bleeding.

            Go back and review how fair use is determined, and you can see that it's an area where it's very easy to suggest "may be fair use" but almost always equally easy to say "may not be either".

            And again, bots cannot determine either way, so they either need to end the charade, and change the law as written so it matches the law as practiced, which is 'No fair use consideration is required', or enforce the requirement for fair use considerations, which means bots cannot be the one and only step before filing a DMCA claim. Use a bot to gather up a list of 'maybes', but if someone is going to claim that fair use was considered, and rejected, then that requires a human to make that determination.

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

          • icon
            PaulT (profile), 16 Sep 2015 @ 12:10am

            Re: Re: Re: Re:

            "The most important is that DMCA as a concept is a way to allow for "oops, I infringed your work, sorry" without a lawsuit and without costs or punishment."

            A more accurate description based in reality:

            "The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet"

            In other words, you're full of shit, yet again. The DMCA is there to codify laws that others can break while doing perfectly innocent things. The fact that it also has safe harbours and some very weak protections for individuals does not nullify the massive power it gives to corporations, who destroy the rights of individuals without any realistic recourse (as indicated by the video in the article, which has been fought for years despite it being clearly protected by the provisions in the DMCA).

            In other words, the opposite of what you said.

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

            • identicon
              Anonymous Coward, 16 Sep 2015 @ 2:04am

              Re: Re: Re: Re: Re:

              Whatever's well-thought and rational rebuttal consisting of him shaking his fist at the big scary PaulT and his troll bait in 3, 2, 1...

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

          • icon
            John Fenderson (profile), 17 Sep 2015 @ 7:41am

            Re: Re: Re: Re:

            "The most important is that DMCA as a concept is a way to allow for "oops, I infringed your work, sorry" without a lawsuit and without costs or punishment. The other side of that is "oops, I squished your fair use, sorry" that should (and is) given about equal weight."

            If that's the most important part of the concept, then the DMCA is a total and unmitigated failure.

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


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