You haven't shown that he backed away when presented with an incontrovertible mistake.
What does his lack of "backing away" have to do with him comparing two unrelated statistics in order to drum up FUD?
In fact, he wouldn't "back away" even if he were presented with an incontrovertable mistake. I know this from experience. I wrote a critical comment on the Trichordist site once, and in a personal email exchange, he made some vague threats about contacting my college (I was writing from my school email account) and warnings about how Chris Castle could sue me. Then he deleted my comment and forwarded my email to Castle, presumably so Castle could so the same. I wrote a little about it here.
Regardless, do you think the CA is a "front group" for the RIAA, despite the publicized fact that the RIAA is a member of CA (and not just a funder)?
What the article actually said is that it is a "front group" for "the entertainment industry." That seems entirely accurate to me.
The Copyright Alliance is a 501(c)(4) front group created and operated by associates of former Sen. Don Nickles (R-Oklahoma) and his lobbying firm, The Nickles Group, LLC. Formed in 2007, the Copyright Alliance claims to represent a broad cross-section of copyright stakeholders, with an emphasis on the interests of creative individuals such as photographers, visual artists, songwriters and performers; however, the makeup of its board, the corporate backgrounds and political connections of its founders and staff members, and its advocacy track record reveal that its true purpose is to promote the interests of prominent telecom and entertainment corporations.
While the backgrounds of the people at the Alliance strongly imply that the organization is a front group, it is of course their words and actions that most directly demonstrate the Alliance's true mission and reason for existence. A prime example showing what the Alliance is all about is the testimony of Executive Director Sandra Aistars to a hearing of the House Subcommittee on Intellectual Property, Competitiveness and the Internet, on June 01, 2011. Three panelists testified before the committee: Sandra, from the Copyright Alliance; Maria Pallante, the Register of the U.S. Copyright Office; and Michael O'Leary, Vice President of Congressional Affairs at the Motion Picture Association of America (MPAA).
In her written testimony, Sandra describes the Alliance in much the same way as she does at many of her other public appearances, and in keeping with the Alliance's branding:
The Copyright Alliance is a public interest and educational organization supported by more than 40 entities comprised of individual artists and creators, as well as the associations, guilds, and corporations that support and invest in them. Besides these institutional members, we have more than 7,000 individual, one-voice artist advocates who give their personal time and creativity to support our work.
Note her emphasis on individuals, and the very obvious minimization of the Alliance’s corporate membership. Later in her testimony, she adds:
The Copyright Alliance represents the copyright holder next door. Our members are living and working in all 50 States and include, among others, the independent filmmakers who self-finance films that tell as-yet-untold stories, the talented crafts people who are behind every television show and motion picture you enjoy, the tens of thousands of professional photographers and videographers across the country who run their own studios, employ a handful of workers, and contract with a dozen more, and there are people working in unexpected places on extraordinary projects, like a music producer living in Wrightsville, North Carolina, who is working from his home studio with musicians as far away as Glasgow and as recognized as Neil Young.
To anyone unfamiliar with the details of the Alliance, Sandra and the other witnesses appear to represent a broad spectrum of interests before the committee. Maria, a government official; Sandra, allegedly speaking for the plucky "individual creators" of the general public; and Michael O'Leary, representing an association of prominent corporations. However, since the MPAA is a Copyright Alliance board member, and even better, the MPAA officer who's named as a director of the Alliance is in fact none other than Michael O'Leary himself, the appearance of a broad spectrum of interests being represented is an illusion. One more item pointing to the MPAA’s heavy presence can be seen in the video of the hearing, where the spectator sitting immediately behind Sandra appears to be Cindi Tripodi: Copyright Alliance staffer, Nickles lobbyist representing the MPAA, and former vice president of congressional affairs for the MPAA, which to remind you is the job O’Leary currently holds.
I think Stravinsky has been attributed with the quote "Lesser artists borrow, great artists steal."
This (modern) version of the quote is actually from T.S. Elliot: "Immature poets imitate; mature poets steal[.]"
Interestingly enough, this evolved from a quote by W. H. Davenport Adams: "great poets imitate and improve, whereas small ones steal and spoil." (He was favorably referring to Tennyson's use of other poets' material.)
Recall that one of the reasons that Jim Hood issued an "administrative subpoena" to Google is that they refused to block the TLD's of "pirate sites."
Never mind that thousands of musicians have use TPB to promote their own music. (You may think it's stupid, but it's their right to do it.) Blocking TBP altogether would infringe on the rights of these artists to distribute their works to the public, which is a fundamental human right.
But never mind that. According to this Anonymous Coward, the internet isn't bowing down enough to the wills of the monopsony labels, so fuck it. Let it die.
He calls everyone on the government side criminals, and then says that criminals should get a bullet to their apparently empty skulls.
When you put the two together, there is a clear threat, and one that suggests action against government agents.
This is simply not true. The first quote said that people on the government side "should have grand theft and / or larceny charges filed against them," which is not a threat of violence.
The second quote said that "a bullet to their apparently empty skulls" could be the consequence of their actions - by someone who is not the poster.
This is clearly hyperbole (and pretty ridiculous IMHO), and is clearly not a direct threat to the agents involved by the commenter.
No reasonable person would conclude that this poster was about to go out and shoot any of the agents involved.
Even if it could be interpreted as such, it does not rise to the level of a "true threat." For example, here's a quote that is much more of a "clear threat," this one against the President:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.
Yet this statement is not a "true threat," it is protected speech. The Supreme Court reached that decision in Watts v. United States.
Here's another example:
If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.
This, again, is protected speech. See NAACP. v. Claiborne Hardware.
Do you know for a fact (absolute) that this guys comments are NOT the first step in doing something really bad?
Luckily for every single human in the U.S., this is not even close to the standard for investigating anyone. There is no way for anyone to know if any speech is "NOT the first step in doing something really bad."
The record labels not only generally pay (based on their contracts) but also provide huge sums of money UP FRONT, pre-paying artists to record for them.
This bullshit has been debunked so many times, it's a bad joke.
The "huges sums of money UP FRONT" (the advances) are not used for "pre-paying artists to record for them." They are used to pay for the costs of recording the album.
Equipment, recording studio payments, payments to record producers, studio musicians' wages, and so on, all come out of that advance. And often it is the labels, not the artists, who determine these things (they bring producers on board, choose the recording studio, etc). Whatever is left over goes to the artists - and their representatives (managers, publicists, assistants, whatever).
And the "pay" (royalties) doesn't accrue until after that advance is paid back out of the artist's royalty share. This varies by contract, but a good round number is 15% of the profits.
So, if you have a $200K advance - nearly all of which goes into recording the album - then artist's royalties won't accrue until the album has made about $1.3 million dollars. At that point, the label has earned over a million dollars, and the artist has earned nothing in royalties. And this doesn't count other "recoupables," such as the album artwork, music video costs, tour support, and so forth, that also must be paid back in full before the artists earn royalties.
Incorrect. Natural right says that if I create something, it's mine. Copyright only helps to more clearly define that in legal terms.
This is completely false. U.S. copyright law is not, and was never, based on the natural rights of authors:
The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive right to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policty is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.
In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly.
- H.R. Rep. No. 60-2222
It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."
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.
I'll take that over an F- for not reading anything, which is your grade at this point in the semester.
Notice Automattic says " more than 25% of notices fail to meet those requirements" and then doesn't use an actual number or percentage when it comes to " in many cases people simply don’t have a colorable claim that infringement is taking place". It's a clear indication that this isn't the case for all of the 25%, and not even a number big enough for them to specifically mention.
You are totally full of shit, and here's why.
Obviously, Automattic can't know who actually has "a colorable claim" to infringement, and neither can you or I. But "a colorable claim" is legal-speak for "not utterly full of shit," so when Automattic says that these DMCA notices do not represent even "a colorable claim" to infringement, you can be reasonably certain that they're utterly bogus.
Notice again that they don't seem to provide much detail as to why they don't consider these claims valid.
That's detailed in the DMCA. Remember that service providers have to work with DMCA notice senders, by law, if:
ii. they provide "identification of the copyrighted work claimed to have been infringed;"
iii. they provide "identification of the material that is claimed to be infringing," and "information reasonably sufficient to permit the service provider to locate the material;"
iv. they provide "information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted."
The "reasonably sufficient" language makes it clear that you don't have to dot your i's and cross your t's; you just have to provide something sane and rational. It's easier and more straightforward than signing up for Facebook, with even less sanity checks.
And 25% of DMCA notice senders couldn't even do that. Despite the fact that Automattic provides a page where everything is laid out, in plain English, in addition to their DMCA contact email.
It is pretty much impossible to send an invalid DMCA notice in this case. Yet 25% of senders do it.
Like many service providers, Automattic provides an online form that guides a claimant in submitting a 512(c)(3)-complaint notification (https://automattic.com/dmca-notice/) - and even so, a quarter of the notices simply don’t include the necessary information.
If you go to that page, everything is laid out in plain, non-lawyerly language.
If you apply the rules to the nth degree (and Automattic apparently does) it's very easy to find fault in almost every DMCA Notice in some form or another. Those made by individual rights holders who are not familiar with the exact wording required could fail every time.
I guess you didn't bother to read Automattic's filing:
As discussed below with respect to Subject No. 30, our statistics show that more than 25% of notices fail to meet those requirements, and it is our belief that the failure comes not from overly burdensome requirements, but because in many cases people simply don’t have a colorable claim that infringement is taking place.
In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).
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.