Our Comment On DMCA Takedowns: Let's Return To First Principles (And The First Amendment)

from the what's-working-and-what's-not dept

As mentioned earlier, today's the day to file comments with the Copyright Office over the DMCA's notice and takedown provisions. We've already discussed the recent set of studies showing that there are way too many bogus takedown notices that are clogging the system, creating real problems for small service providers and censoring free speech. We also wrote about the patently ridiculous filing by the legacy players in the music industry, who whined about how the public is enjoying more content than ever before (which, you know, is the stated purpose of copyright law), but they're upset that their business models are now obsolete. Finally, we wrote about the fantastic filing from Automattic, which gives many more real world examples of how the takedown process is abused (which the legacy industry pretends isn't true, because people don't file counternotices).

And now, here's our own comment, prepared by our excellent attorney (and sometimes guest poster), Cathy Gellis. In this filing, we decided to focus on taking a step back and going to first principles about the intent of copyright law itself, as well as the official and stated intent of the DMCA -- and to look at where things seem to be working and where they are not. As the filing notes, Congress made it clear with both the DMCA 512 safe harbors and the CDA Section 230 immunity provisions that it intends to support a vibrant internet where the public is free to share its views. And we see no reason why Congress should back away from that.

But, of course, there are problems, and the big one is widespread censorship enabled by the notice-and-takedown provision:
Despite all the good that Section 230 and the DMCA have done to foster a robust online marketplace of ideas, the DMCA's potential to deliver that good has been tempered by the particular structure of the statute. Whereas Section 230 provides a firm immunity to service providers for potential liability in user-supplied content, the DMCA conditions its protection. And that condition is censorship. The irony is that while the DMCA makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech they exist to facilitate due to the notice and takedown system.

In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. Thanks to the DMCA, however, they are spared both their procedural burdens and also their pleading burdens. In order to cause content to be disappeared from the Internet all anyone needs to do is send a takedown notice that merely points to content and claims it as theirs.

[....]

Ordinarily the First Amendment and due process would not permit this sort of censorship, the censorship of an Internet user's speech predicated on mere allegation. Mandatory injunctions are disfavored generally, and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful. To the extent that the DMCA causes these critical speech protections to be circumvented it is consequently only questionably constitutional. For the DMCA to be statutorily valid it must retain, in its drafting and interpretation, ample protection to see that these important constitutional speech protections are not ignored.
We also highlight examples of innovative platforms and services driven out of business due to bogus DMCA claims, and how that appears to go against the purpose of copyright as well:
Veoh was a video hosting service akin to YouTube that was found to be eligible for the DMCA safe harbor. Unfortunately this finding was reached after years of litigation had already driven the company into bankruptcy and forced it to layoff its staff. Meanwhile SeeqPod was a search engine that helped people (including potential consumers) find multimedia content out on the Internet, but it, too, was also driven into bankruptcy by litigation, taking with it an important tool to help people discover creative works.

History is littered with examples like the ones above of innovative new businesses being driven out of existence, their innovation and investment chilled, by litigation completely untethered from the principles underpinning copyright law. Copyright law exists solely to "promote the progress of science and the useful arts." Yet all too frequently it has had the exact opposite effect.

The DMCA has the potential to be a crucial equalizer, but it can only do so when the economic value of what these service providers deliver is considered by policymakers with at least as much weight as that given to the incumbent interests who complain that their previous business models may have become unworkable in light of digital technology. Service providers are economic engines employing innumerable people, directly and indirectly, and driving innovation forward while they deliver a world of information to each and every Internet user. We know economic harm is done to them and to anyone, creators and consumers, who would have benefited from their services when they are not protected.
And along those lines, our comment also points out that the legacy players have a fairly long history of crying wolf over problems that aren't really problems:
But what needs careful scrutiny and testing are economic arguments predicated on the assumption that every digital copy of every copyrighted work transmitted online without the explicit permission of a copyright holder represents a financial loss. This is a presumption that needs careful scrutiny, with reviewable data and auditable methodology. It is quite a leap to assume that every instance (or even most instances) of people consuming "pirated" copyrighted works is an instance they would otherwise have paid the creator. For example, it tends to presume that people have unlimited amounts of money to spend on unlimited numbers of copyrighted works, and it also ignores the fact that some works may only be consumable at a price point of $0, which is something that institutions like libraries and over-the-air radio have long enabled, to the betterment of creators and the public beneficiaries of creative works alike. Furthermore, even in instances when people would be willing to pay for access to a work, copyright owners may not be offering it at any price, nor are they necessarily equitably sharing the revenues derived from creative works with the actual creators whose efforts require the remuneration.

The DMCA does not adjust to reflect situations like these, nor does it incentivize copyright holders to correct their own self-induced market failures. On the contrary; it allows them to deprive the public of access to their works and to threaten the service providers enabling their access with extinction if they do not assist in disabling this access. None of these outcomes are consistent with the goals and purpose of copyright in general, and care must be taken not to allow the DMCA be a law that ensures them.
There's a lot more in the filing, including us questioning how merely linking to materials could or should be considered infringing, worries about how the DMCA can be abused to identify previously anonymous speakers and concerns about "repeat infringer" policy requirements that based on accusations rather than actual proof of infringement. You can read the whole thing at the link above or embedded below. And I'll just post the conclusion here as well:
Ultimately it is not possible to have a valid copyright law that in any part is inconsistent with the Progress Clause or First Amendment. To the extent that the DMCA protects intermediaries and with them the speech they foster it is consistent with both of these constitutional precepts and limitations. To the extent, however, that that DMCA suborns due process or otherwise compromises the First Amendment rights of either Internet users or service providers themselves to use and develop forums for information exchange on the Internet it is not. The statutory infirmities that have been leading to the latter outcome should therefore be corrected to make the DMCA’s protections on intermediaries and the speech they foster as durable as this important policy interest requires.

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  • identicon
    Anonymous Coward, 1 Apr 2016 @ 12:40pm

    Yo...

    First Amendment is Dead!

    Tell me how we are going to fix this problem with all the folks still pissing an moaning about their party candidates getting in as opposed to that other bastard.

    We are too busy fighting these retarded party politics for our so-call Elected I mean "Purchased" Officials to recognize that our rights are missing.

    The People are asleep or rabid dogs looking to silent the other side in attempts to crush their liberty.

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  • icon
    Whatever (profile), 1 Apr 2016 @ 1:08pm

    Thread 609

    "In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. "

    I always love it when a lawyer tries to frame something by ignoring the rest of the reality that goes with their chosen argument.

    The rest of the reality is twofold: Such a legal action would incur incredible costs for BOTH parties, and when found to be infringing would lead to financial penalties for the poster that would likely cripple them financially for the rest of their lives.

    The truth is that DMCA gives infringers essentially a free kick at the can. It even gives them REPEATED free kicks at the can. They can post the same infringing material on dozens of different services and never face any true legal ramifications or financial penalty for doing so.

    Painting the picture of huge costs for rights holders without considering the huge risks for "content users" (aka, infringing parties) is offering up a very incomplete picture.

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    • identicon
      Anonymous Coward, 1 Apr 2016 @ 1:26pm

      Re: Thread 609

      They can post the same infringing material on dozens of different services and never face any true legal ramifications or financial penalty for doing so.

      And what of “infringers” who make use of content under Fair Use guidelines?

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    • identicon
      Anonymous Coward, 1 Apr 2016 @ 1:50pm

      Re: Thread 609

      so, if I understand correctly...You work for or are some sort of "content producer"...? Well that puts all of your comments into perspective.

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    • identicon
      Anonymous Coward, 1 Apr 2016 @ 1:51pm

      Re: Thread 609

      So, do you have any sort of comment or even awareness on the actual issue being discussed, which is the impact of DMCA takedowns on legitimate, legal speech? Or are you just going to keep cherrypicking out-of-context passages and willfully ignoring the point?

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      • icon
        Whatever (profile), 1 Apr 2016 @ 8:51pm

        Re: Re: Thread 609

        "do you have any sort of comment or even awareness on the actual issue being discussed, which is the impact of DMCA takedowns on legitimate, legal speech? "

        First off, I have to say that from everything I have seen, the number of legal and legit uses which get DMCA'ed is a very small part of the overall DMCA system. It would in fact be cherrypicking to use those examples while ignoring the insanely huge amount of just straight up infringement that exists.

        Look at the Automatic numbers. 29% have technical errors. 10% are invalid. 61% are valid and are applied. so the fair use cases fit inside the 10% I am assuming as they didn't specifically break it out. When you get rid of the 29% technical error, the numbers for "processed" DMCAs are 85% valid, so the number of fair use cases rejected is relatively small.

        No matter how much Techdirt goes on about it, fair use that is (a) shut down by DMCA, and (b) not counter noticed is actually a small number of the overall DMCA situation. That's your cherrypicking!

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        • identicon
          Anonymous Coward, 2 Apr 2016 @ 12:04am

          Re: Re: Re: Thread 609

          Ah, now I get it. You don't understand the difference between "cherrypicking" and just "someone making a different point than the one you want to focus on"

          Is your point, then, simply that you don't believe the damage of the DMCA is worth considering or trying to correct at all? That's fine! And nobody here agrees. You can go now.

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        • icon
          MrTroy (profile), 3 Apr 2016 @ 10:13pm

          Re: Re: Re: Thread 609

          Look at the Automatic numbers. 29% have technical errors. 10% are invalid. 61% are valid and are applied. so the fair use cases fit inside the 10% I am assuming as they didn't specifically break it out. When you get rid of the 29% technical error, the numbers for "processed" DMCAs are 85% valid, so the number of fair use cases rejected is relatively small.


          The fact that only 15% of technically correct DMCA notices are obviously invalid (in the words of Automattic "clearly false or mistaken.") doesn't mean that the other 85% are correct and valid. Other sitations that aren't ennumerated that could fit into the other 85%:

          * Parallel construction, or content that shares the same provenance
          * Copyrighted material based on material in the public domain
          * People taking down their own content.

          This is a non-exhaustive list, but feel free to ignore it anyway.

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    • icon
      jupiterkansas (profile), 1 Apr 2016 @ 2:56pm

      Re: Thread 609

      "Such a legal action would incur incredible costs for BOTH parties, and when found to be infringing would lead to financial penalties for the poster that would likely cripple them financially for the rest of their lives."

      And that's an even bigger problem that needs to be fixed, but it is not fixed by the DMCA.

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    • identicon
      Anonymous Coward, 1 Apr 2016 @ 3:18pm

      Re: Thread 609

      The rest of the reality is twofold: Such a legal action would incur incredible costs for BOTH parties,

      So the answer is to give the advantage to corporations who can afford to employ lawyers on a full time basis, as the DMCA does. That assumes that the corporations will not make maximum use of that power to damage any competition, which is a leap of faith too far.

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      • icon
        Whatever (profile), 1 Apr 2016 @ 8:58pm

        Re: Re: Thread 609

        "So the answer is to give the advantage to corporations who can afford to employ lawyers on a full time basis, as the DMCA does."

        You missed the point: DMCA actually gives huge advantage to infringers and general use of copyright material, because the penalty for misuse is getting the content removed, end of discussion. While the law gives plenty of power to the rights holder to issue notices, the real power is that people can infringe with little or no risk.

        Imagine if every DMCA against a YouTube video was replaced with a lawsuit - and the rights holders generally would win about 80% of them (based on DMCA stats). Can you imagine the costs, the court backlogs, and the number of people with crippling judgements against them? Instead, DMCA allows them to infringe with impunity, the biggest "loss" is having your post removed from a free hosting service.

        Is some free speech squashed in the overall process? Probably once in a while. But the overall numbers should that the number of valid DMCA notices is actually quite high, and general go uncontested by the anonymous posters who don't want to take responsibility for their post.

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        • identicon
          Anonymous Coward, 2 Apr 2016 @ 12:07am

          Re: Re: Re: Thread 609

          Imagine if every DMCA against a YouTube video was replaced with a lawsuit - and the rights holders generally would win about 80% of them (based on DMCA stats). Can you imagine the costs, the court backlogs, and the number of people with crippling judgements against them?

          Wow, yeah -- it's almost as though copyright is a broken, obsolete law that would be completely untenable if it was responsibly and equitably applied!

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        • identicon
          Anonymous Coward, 2 Apr 2016 @ 8:49am

          Re: Re: Re: Thread 609

          "You missed the point: DMCA actually gives huge advantage to infringers and general use of copyright material, because the penalty for misuse is getting the content removed, end of discussion."

          The DMCA does not remove the ability to sue for infringement damages just as before it simply provides more options for having content removed, options that weren't previously present.

          "the rights holders generally would win about 80% of them (based on DMCA stats)."

          Even if 80 percent of takedown requests have resulted in removed content this does not mean that 80 percent of requests are valid. This is one of the problems with the system is that it encourages a shoot first ask questions later approach whereby content is first removed with no trial simply based on your unsubstantiated faith that these removals are mostly valid. Furthermore little incentive is given to privilege holders to make any effort to ensure that their takedown requests are valid, instead, almost all of the burden is placed on those on the receiving end of a takedown notice to prove that they haven't infringed or broken any laws under penalty of perjury. It's a guilty until proven innocent approach whereby the defendant is the one that needs to prove their case when it should be the other way around.

          "But the overall numbers should that the number of valid DMCA notices is actually quite high, and general go uncontested by the anonymous posters who don't want to take responsibility for their post."

          Again, the problem here is that you assume that the defendants are guilty until proven innocent. That assumption is nothing but pure speculation and your speculation should bear no legal weight. The problem is that the law places weight on this type of nonsense speculation and that's what needs to change. Guilt needs to be proven not the other way around and those that file bogus takedowns should bear the same burden of ensuring their takedown requests are valid as artists on the receiving end of a takedown notice.

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          • icon
            Whatever (profile), 2 Apr 2016 @ 10:11am

            Re: Re: Re: Re: Thread 609

            "The DMCA does not remove the ability to sue for infringement damages just as before it simply provides more options for having content removed, options that weren't previously present."

            Incorrect. if you try to move forward with a copyright case (in the case of a website that may have your content / images / music / whatever posted without having the DMCA notices on hand you are very likely to lose out in court. DMCA isn't just the more expedient way to deal with infringement by misuse, it's pretty much a required step.

            " the problem here is that you assume that the defendants are guilty until proven innocent. "

            The assumption is that the rights holder knows who has the rights to use their content and who does not. The assertion is based on the knowledge that they and they alone would have. So when a creator asserts their DMCA rights, then yes it's a pretty good assumption that they are generally (notice generally) in the right.

            Guilt does not have to be proven, it's not different from trespassing. Your word as a property owner is generally enough for police to take action or for courts to order an eviction. There is no "due process" on DMCA, read the law.

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            • identicon
              Anonymous Coward, 2 Apr 2016 @ 10:44am

              Re: Re: Re: Re: Re: Thread 609

              The assumption is that the rights holder knows who has the rights to use their content and who does not.

              And that assumption has been proven wrong many, many times. But you don't care - you LOVE committing to terrible, provably incorrect assumptions. You literally wouldn't have a single idea or opinion without that crutch.

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            • identicon
              Anonymous Coward, 2 Apr 2016 @ 10:50am

              Re: Re: Re: Re: Re: Thread 609

              if you try to move forward with a copyright case (in the case of a website that may have your content / images / music / whatever posted without having the DMCA notices on hand you are very likely to lose out in court

              Incorrect, genius. If you try to move forward with a case against the platform provider, then yes. If you try to go after the actual infringing party (something I know you copyright apologists are loathe to ever do, since it's far too just and fair for your tastes) you won't have that problem.

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            • identicon
              Anonymous Coward, 2 Apr 2016 @ 11:22am

              Re: Re: Re: Re: Re: Thread 609

              "Incorrect. if you try to move forward with a copyright case (in the case of a website that may have your content / images / music / whatever posted without having the DMCA notices on hand you are very likely to lose out in court. DMCA isn't just the more expedient way to deal with infringement by misuse, it's pretty much a required step."

              This still doesn't shield the infringing party, the party that submitted the content, from any possible damages.

              "The assumption is that the rights holder knows who has the rights to use their content and who does not. The assertion is based on the knowledge that they and they alone would have. So when a creator asserts their DMCA rights, then yes it's a pretty good assumption that they are generally (notice generally) in the right."

              This assumption is no better than the assumption that the person that submitted the content knows that they have the legal rights to submit said content.

              Why should the alleged privilege holder face less burden of making their assertion that they hold the privileges to something than the artist having their content removed? If the assumption that said content really does belong to the person claiming a takedown is really generally true then you shouldn't have any problems with providing artists that have false takedown requests against their works the same legal protections as those that have works infringed upon. If a takedown request turns out to be over a work that the requester has no privileges over they should pay equal penalties and face an equal burden.

              "The assertion is based on the knowledge that they and they alone would have."

              This is another problem with copy protection laws that is often complained against. Property ownership generally requires some sort of registration so that the government and the people can keep track of who owns what. This is generally public record. With copy protection laws there is no such requirement which creates a lot of confusion and allows people to claim works they don't have privileges over and it becomes a game of hearsay which is nonsense. There is no requirement for the privilege holder to be identified as holding the privileges over a piece of work unlike real property. This makes it more difficult for service providers and anyone to police work.

              "Guilt does not have to be proven, it's not different from trespassing. Your word as a property owner is generally enough for police to take action or for courts to order an eviction. There is no "due process" on DMCA, read the law."

              Yes, guilt has to be proven. If someone is not actually trespassing on your property then you can't prove they are guilty of anything. If they are trespassing on their own property you can't simply claim to own the property and, based on said claim, evict them off their own property and then later sort out whether you own the property or not. No, the government and police have records of who owns what property. There is due process involved. Even if they are renting the property you generally have to give them advanced notice before evicting them which is a form of due process. You wan to make IP law analogous to real property law without imposing the same due process steps associated with real property laws.

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              • identicon
                Anonymous Coward, 2 Apr 2016 @ 11:24am

                Re: Re: Re: Re: Re: Re: Thread 609

                you want to make IP laws ... *

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              • identicon
                Anonymous Coward, 2 Apr 2016 @ 11:35am

                Re: Re: Re: Re: Re: Re: Thread 609

                and if you don't believe me try evicting some random person out of their own house that they own and you don't. See how far that gets you. Under what law would you be able to evict someone out of their own house under the simple assertion that you own the house before later sorting out who really owns the house? You want IP laws to be analogous to real property then similar due process should be involved. You shouldn't be able to evict someone out of works that you don't have privileges to without them first being subject to the same due process that they would be subject to if you tried to evict someone from their own home that you claim is yours.

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                • identicon
                  Anonymous Coward, 2 Apr 2016 @ 12:02pm

                  Re: Re: Re: Re: Re: Re: Re: Thread 609

                  Furthermore under what law could a property owner penalize a trespasser enough to "cripple them financially for the rest of their lives" as you assert even if they intentionally trespassed on your lawn? Just shows the absolute ridiculous nature of IP laws. You want to make IP laws comparable to real property laws then we should make the penalty and due process structure more like that of real property laws.

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                  • identicon
                    Anonymous Coward, 2 Apr 2016 @ 12:03pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Thread 609

                    (heck, even a vandal that intentionally trespasses and breaks your window or even if someone intentionally robbed your house they won't be subject to those kinds of penalties).

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                    • identicon
                      Anonymous Coward, 2 Apr 2016 @ 12:06pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Thread 609

                      (OK, there are some regressive governments that may cut of your fingers if your steal but do you really want to compare IP laws to that?)

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        • icon
          Karl (profile), 2 Apr 2016 @ 2:46pm

          Re: Re: Re: Thread 609

          DMCA actually gives huge advantage to infringers and general use of copyright material, because the penalty for misuse is getting the content removed, end of discussion.

          You keep saying this, and it is completely false.

          The DMCA safe harbors protect service providers. Nothing in the DMCA gives any more protection to users who upload infringing content. If you upload infringing content, it doesn't matter if it's removed or not, you can still be sued if the copyright holder chooses to do so.

          In fact, the DMCA makes it easier to sue infringing users.

          In order to send a counter-notice, you have to agree to be sued in the U.S. It's in 512(g)(3)(D):
          (3)Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following: [...]

          (D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

          And if you send a counter-notice, and the content is ultimately found to be infringing, you are not only on the hook for damages to the copyright holder, but also to the service provider, and you automatically have to pay attorney's fees:
          (f)Misrepresentations. - Any person who knowingly materially misrepresents under this section -
          (1) that material or activity is infringing, or

          (2) that material or activity was removed or disabled by mistake or misidentification,

          shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

          True, this section also ostensibly protects those whose content is taken down. But as we've seen in the Lenz case, it's pretty much impossible to show that a copyright holder "knowingly materially misrepresents" that something was infringing.

          So the DMCA is heavily weighted against sending counter-notices, even if the DMCA notice is utterly and completely bogus.

          Additionally, the DMCA grants subpoena rights to identify infringers under 512(h). Without the DMCA, this would have to go through a judge.

          Imagine if every DMCA against a YouTube video was replaced with a lawsuit

          YouTube is a bad example. They have ContentID, so copyright holders don't send DMCA notices, they simply claim the content and take all the money it generates. But for the sake of argument, let's assume that wasn't an option.

          As I shoed above, there is absolutely no reason that a DMCA against a YouTube video can't involve a lawsuit.

          So, why aren't users getting sued left and right?

          There are a bunch of answers:

          1. As you said earlier: "Such a legal action would incur incredible costs". It is simply not economically feasible for rights holders to go after users through the court system. And even if they did get judgements that "cripple [infringing users] financially for the rest of their lives", those judgements still wouldn't end up paying for the legal fees.

          (But they probably will be, as soon as the Rightscorps or Righthavens of the world figure out how to do it.)

          2. Simply put, a single YouTube video doesn't cause enough economic damage to be worth the lawsuit. The monetary incentive for copyright holders to prevent infringement by a single user simply isn't there.

          3. Copyright holders would have to actually obey the law. The DMCA makes it so easy to take down content that copyright holders even suspect to be infringing, that they simply send DMCA notices without a second thought. The penalties for doing so are trivial, if they are even enforced at all.

          If they had to go through the court system, they not only have the chance of losing, but of setting precedents that they don't want, or of reiterating existing precedents that they like to pretend don't exist.

          So, if the DMCA didn't exist, I doubt we'd see any more lawsuits against users than we do now. We'd only see a lot more lawsuits against service providers.

          Don't pretend any of this benefits users (infringing or not). It doesn't.

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          • icon
            Karl (profile), 2 Apr 2016 @ 2:49pm

            Re: Re: Re: Re: Thread 609

            s/shoed/said

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          • icon
            Whatever (profile), 3 Apr 2016 @ 10:20pm

            Re: Re: Re: Re: Thread 609

            "The DMCA safe harbors protect service providers. Nothing in the DMCA gives any more protection to users who upload infringing content. If you upload infringing content, it doesn't matter if it's removed or not, you can still be sued if the copyright holder chooses to do so."

            Technically correct, realistically not correct, for a bunch of reasons.

            First and foremost, if you follow the DMCA and remove the content, the infringement is stopped. At that moment, the very basis of a copyright infringement lawsuits has shrunk considerably, the "harm" has stopped and thus any lawsuit is based solely on the harm done before the DMCA notice. It makes the case much harder to make.

            Second, you would also have to show that the site owner was in fact the one that posted the content. Many sites use "user contributed" content, which means that the site owner also plays the ISP card as a sort of get out of jail free card. They can then point to an anonymous contributor with an IP address that points to a TOR exit, and entirely escape liability.

            Third, even if they did post the content in question, a rights holder would have to prove that use in a court of law, and show actual harm. The costs related to doing so past the costs of a DMCA notice are such that few rights holders are willing to take anyone to court. The length of time to prove the case and the endless appeals that would follow are longer than most are interested in, and obtaining what amounts to an unenforceable judgement (defendant too poor, shell company, etc) makes it all but useless to do.

            "In order to send a counter-notice, you have to agree to be sued in the U.S. It's in 512(g)(3)(D):"

            Sort of normal. It's US law, and generally the notices are sent by US companies or sent to US addresses.

            Of course, there is no obligation to send a counter notice. You can remove the content and call it even. The chances of anyone bothering to sue you are all but nil (see above). The numbers of "website content" copyright lawsuits are so small, that you have way more chance of being hit by lightning and the Queen's motorcade at the same time.

            "So, why aren't users getting sued left and right?"

            Your answers are technically correct, but the reality is that with if you follow the DMCA and remove the content when notified, there is little incentive for a rights holder to take you to court because the harm has stopped.

            Now, all of your comments are meaningless in internet reality, because almost all infringement is done ANONYMOUSLY. Youtube, instagram, and so on accounts that all point anonymous email accounts. The net effect is that end users can post infringing content with impunity, and the service providers don't bear any responsibility beyond just deleting the content (after they have made traffic and income from it). As a result, we have sites like YouTube packed full of copyright material, with hundreds of hours more uploaded every day, and no real way for rights holders to keep up.

            "So, if the DMCA didn't exist, I doubt we'd see any more lawsuits against users than we do now. We'd only see a lot more lawsuits against service providers."

            Incorrect. Without DMCA, service providers would not accept anonymous postings, and if sued, they would quickly give up the user information and involve them in any lawsuit. "Anonymous User sourced content" would not be a valid business model, and with end users properly identified, it's very likely that infringement would drop dramatically because few would want to take the risks.

            I could also see where true service providers (naked hosting companies, not site owners such as youtube) could be classed similar to phone companies, and be able to avoid lawsuits by being transparent and helpful when it comes to identifying their customers.

            Really, DMCA just encourages "anonymous" infringing and business models predicated on it. It's hard to deny reality!

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

            • icon
              MrTroy (profile), 3 Apr 2016 @ 10:37pm

              Re: Re: Re: Re: Re: Thread 609

              "So, if the DMCA didn't exist, I doubt we'd see any more lawsuits against users than we do now. We'd only see a lot more lawsuits against service providers."

              Incorrect. Without DMCA, service providers would not accept anonymous postings, and if sued, they would quickly give up the user information and involve them in any lawsuit. "Anonymous User sourced content" would not be a valid business model, and with end users properly identified, it's very likely that infringement would drop dramatically because few would want to take the risks.


              Without DMCA, wouldn't service providers still be covered by section 230?

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

              • icon
                Whatever (profile), 4 Apr 2016 @ 2:49am

                Re: Re: Re: Re: Re: Re: Thread 609

                I am not sure that section 230 would be an escape from copyright obligations.

                I also think that there would be a big difference between true naked ISPs (server hosting) and websites that "host" content as part of their site (like YouTube). I could see where, absent DMCA, that there would need to be a law that would class them similarly to phone companies (not responsible for the content). I don't think that websites that happen to accept user content would get the same exemption.

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

            • identicon
              Anonymous Coward, 4 Apr 2016 @ 3:45am

              Re: Re: Re: Re: Re: Thread 609

              "Technically correct, realistically not correct, for a bunch of reasons.

              First and foremost, if you follow the DMCA and remove the content, the infringement is stopped. At that moment, the very basis of a copyright infringement lawsuits has shrunk considerably, the "harm" has stopped and thus any lawsuit is based solely on the harm done before the DMCA notice. It makes the case much harder to make."

              Which doesn't negate the fact that the DMCA is simply another option for privilege holders and doesn't take away from any ability they previously had to sue infringing party.

              "Second, you would also have to show that the site owner was in fact the one that posted the content."

              Which is perfectly reasonable. If the site owner didn't post the content then they aren't the infringing party. If they did then you need to show it.

              "Third, even if they did post the content in question, a rights holder would have to prove that use in a court of law, and show actual harm."

              They can still claim statutory damages just as before. No different than under IP laws as before.

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

            • identicon
              Anonymous Coward, 4 Apr 2016 @ 7:54am

              Re: Re: Re: Re: Re: Thread 609

              You know what? Yup. You've convinced me. It's pretty undeniable: copyright is an untenable law and should be done away with entirely or massively scaled back. Thanks for making that case.

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

            • icon
              Karl (profile), 5 Apr 2016 @ 7:02am

              Re: Re: Re: Re: Re: Thread 609

              First and foremost, if you follow the DMCA and remove the content, the infringement is stopped. At that moment, the very basis of a copyright infringement lawsuits has shrunk considerably, the "harm" has stopped and thus any lawsuit is based solely on the harm done before the DMCA notice. It makes the case much harder to make.

              Not really. All that a rights holder has to do is show that infringement occurred, and they're eligible to collect statutory damages. And, as we saw in the Thomas-Rasset and Tenenbaum cases, statutory damages bear little to no relation to the harm done.

              Second, you would also have to show that the site owner was in fact the one that posted the content.

              What are you talking about? The one that posted the content can get sued, regardless of whether it was the site owner or not. (And if it is the site owner, there goes its DMCA protection.) Rights holders don't have to show it was the site owner in order to sue the user.

              Third, even if they did post the content in question, a rights holder would have to prove that use in a court of law

              As I said: they'd have to actually follow the law. The fact that the DMCA makes it easy to not follow the law is an argument against the DMCA.

              The costs related to doing so past the costs of a DMCA notice are such that few rights holders are willing to take anyone to court.

              As I said.

              Sort of normal. It's US law, and generally the notices are sent by US companies or sent to US addresses.

              There is no parallel requirement for rights holders. Someone can send Wordpress a takedown notice from Brazil or wherever, and they aren't required to agree to be sued in the U.S.

              But, "normal" or not, it does show that the DMCA isn't designed to protect users, which was your entire point.

              Of course, there is no obligation to send a counter notice. You can remove the content and call it even.

              You mean, "even though you don't think you're infringing, you can shut up when the service provider removes your content, and live with the strike on your account." Yeah, that's totally fair.

              almost all infringement is done ANONYMOUSLY. Youtube, instagram, and so on accounts that all point anonymous email accounts. [...] Without DMCA, service providers would not accept anonymous postings, and if sued, they would quickly give up the user information and involve them in any lawsuit. "Anonymous User sourced content" would not be a valid business model, and with end users properly identified, it's very likely that infringement would drop dramatically because few would want to take the risks.

              So, you're basically saying that the Web as we know it would not exist. Bye-bye Wordpress, Reddit, YouTube, Facebook, and so forth. Bye-bye Amazon reviews, eBay listings, or comments on news sites.

              Bye-bye, our First Amendment right to speak anonymously.

              And bye-bye Whatever, since you're "anonymous" in that sense (I doubt "Whatever" is your legal name).

              If your point was that the DMCA liability protections are absolutely essential and vital for society, then well done. If you're actually advocating against "Anonymous User sourced content," then you're pro-censorship.

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

              • icon
                nasch (profile), 5 Apr 2016 @ 8:38am

                Re: Re: Re: Re: Re: Re: Thread 609

                What are you talking about?

                If you can't dazzle them with brilliance, baffle them with bullshit. Whatever's modus operandi.

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

    • identicon
      Anonymous Coward, 2 Apr 2016 @ 9:10am

      Re: Thread 609

      "when found to be infringing would lead to financial penalties for the poster that would likely cripple them financially for the rest of their lives."

      and you don't see a problem with this? That such an innocent action, the violation of a copy protection privilege, could lead to someone's financial ruin?

      and why shouldn't artists that have works falsely taken down have the same protections as middlemen that have content infringed upon? Why shouldn't those distributors possibly face similar penalties?

      Why should the distributors get to undemocratically write the laws in their interests against the interests of the artists and the public? Do you not see the moral problem associated with industry interests subverting the democratic process to write the laws in their interests? Are you really that morally bankrupt?

      You don't even pretend to care for the artists anymore. You don't care for the artists, the public, the quality of art, or democracy. The only thing you care about are the distributors. They should write the law with no regard for democracy. and that is a very morally lacking position to hold.

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

  • identicon
    Anonymous Coward, 1 Apr 2016 @ 1:09pm

    Really, Mike? Section 230 and the First Amendment? I'll take two irrelevant doctrines for $200, Alex.

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

    • identicon
      Anonymous Coward, 1 Apr 2016 @ 1:54pm

      Re:

      And it's the daily double! How much are you willing to bet on the absurd notion that the first amendment is "irrelevant" to copyright law?

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

    • icon
      Mike Masnick (profile), 1 Apr 2016 @ 2:05pm

      Re:

      Really, Mike? Section 230 and the First Amendment? I'll take two irrelevant doctrines for $200, Alex.


      Anyone who thinks that the First Amendment is "irrelevant" to a law that is used to suppress speech is... well, irrelevant.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 1 Apr 2016 @ 5:18pm

        Re: Re:

        Can you cite to one case where a party even brought up the Furst Amendment in the DMCA context, much less one where the court ruled on it? Nope. Irrelevant.

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

        • identicon
          Anonymous Coward, 1 Apr 2016 @ 8:05pm

          Re: Re: Re:

          Dude, you need to re-calibrate your trolling. I know it's a common tactic to stand by an absurd position in order to court unnecessarily detailed counterarguments, but when you choose one this laughable nobody's going to take the bait.

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

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 2 Apr 2016 @ 1:11am

            Re: Re: Re: Re:

            That was nice and vague. Just like Mike's silly constitutional arguments.

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

            • identicon
              Anonymous Coward, 2 Apr 2016 @ 8:04am

              Re: Re: Re: Re: Re:

              Yes, it was vague - because we all know you're just a troll and don't believe what you're saying.

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

    • identicon
      Anonymous Coward, 2 Apr 2016 @ 12:20am

      Re:

      The first admendment is a doctrine? I'll take not knowing shit about civics or law for $200 Alex.

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

  • icon
    Mattheus (profile), 1 Apr 2016 @ 1:26pm

    On the Idea of First Principles

    http://www.amazon.com/Against-Intellectual-Property-Stephan-Kinsella/dp/B001DTHFWS

    "The state works with monopolistic private producers to inhibit innovation and stop the progress of technology, while using coercion against possible competitors and against consumers. Even U.S. foreign policy is profoundly affected by widespread confusions over what is legitimate and merely asserted as property. What Kinsella is calling for instead of this cartelizing system is nothing more or less than a pure free market, which he argues would not generate anything resembling what we call intellectual property today. IP, he argues, is really a state-enforce legal convention, not an extension of real ownership."

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

  • icon
    dfed (profile), 1 Apr 2016 @ 1:32pm

    Anyone else a little disturbed that April Fool's Day is the day to comment on the first amendment to the Copyright Office?

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

  • icon
    vadim (profile), 1 Apr 2016 @ 2:58pm

    Bogus DMCA claims

    I think to provoke the reform to impose penalties for bogus DMCA claims, one need to organise a coordinated campaign of such claims against web pages of congressmen. Imagine a day with DMCA takedown of web sites of ALL congressmen.
    The legislation will be amended next week!!!!

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

    • icon
      nasch (profile), 1 Apr 2016 @ 4:04pm

      Re: Bogus DMCA claims

      The legislation will be amended next week!!!!

      Nah, the staffers would have their websites back up in no time. You and I can't just call companies like Wordpress and get stuff done but when Senator so-and-so's office calls you can bet they jump.

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

  • identicon
    Anonymous Coward, 1 Apr 2016 @ 3:24pm

    I'm surprised more aren't writing about this, like Google since they must waste a lot of resources dealing with millions of notices. I know Wikipedia battles these as well, along with Internet Archive. Where are they?

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

  • identicon
    Anonymous Coward, 2 Apr 2016 @ 1:33pm

    I also found this tidbit interesting, contrary to the numbers that Whatever seems to make up and speculate

    "Abuse of takedown notice

    Google asserted misuse of the DMCA in a filing concerning New Zealand's copyright act,[31] quoting results from a 2005 study by Californian academics Laura Quilter and Jennifer Urban based on data from the Chilling Effects clearinghouse.[32] Takedown notices targeting a competing business made up over half (57%) of the notices Google has received, the company said, and more than one-third (37%), "were not valid copyright claims."[33]"

    https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Abuse_of_takedown_notice

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

  • identicon
    Anonymous Coward, 3 Apr 2016 @ 5:43am

    Just imagine if real property laws work like IP laws. I can just arbitrarily declare that your refrigerator, car, and house belong to me and make you disconnect your refrigerator, I can evict you from your own home, and I can deny you use of your own car until it gets sorted out that you really do own this property. Then I can say "oops! I acted in good faith with my claim and I turned out to be wrong. My bad. No punishment to me".

    Real property laws don't work like this at all and neither should IP laws. No one should be able to deny you the right to distribute your own content without you first being subject to the same due process that would be associated with real property laws and the person sending a takedown request should be held to at least the same burden as the person on the receiving end of such a request.

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

    • identicon
      Anonymous Coward, 3 Apr 2016 @ 5:57am

      Re:

      "The assumption is that the rights holder knows who has the rights to use their content and who does not. "

      In fact in the case of real property generally the assumption would be that something belongs to the person that is in possession of it until someone else can prove they in fact own it. The burden will be on the person claiming to own something not in their possession to first prove that they do in fact own it before they can get it removed from the possession of others.

      This is very different from IP laws where the assumption, as Whatever claims, is that whoever arbitrarily claims to own it is assumed to own it until proven otherwise. That's not how real property laws work at all. IP laws are ridiculous and they need to be changed.

      (In the case of IP laws the person that submitted the content is in possession of the content).

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


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