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This would seem to be rather weak, so at least they're saying this only as dicta. We've already seen cases where people use public domain content and then end
by Natsu 11y ago
This would seem to be rather weak, so at least they're saying this only as dicta. We've already seen cases where people use public domain content and then end up using such algorithms to claim the content away from other people, which would seem not to be covered by the above, though perhaps in that case they would say that they should have known of their lack of ownership before turning the bots loose.
And it would seem to spell trouble for the people who just grab the top X results for certain search keywords and then DMCA them without even looking at the sites.
At the very least, I would like to see them put the burden of proof on the person filing the DMCA takedown as to precisely where and how they formed their belief in good faith whenever the takedown is wrongly filed. It's not like anybody else is in a position to testify as to their state of mind and if they're truly responsible parties, they should have no trouble in accounting for what factors somehow mislead them. The courts can also request details on their accuracy: how many such notices have they filed, how many of those have been putback, etc. to decide whether or not they're actually behaving responsibly.
Naturally, I would presume that any party unwilling or incapable of providing such details was, by that very fact, irresponsible. Anyone not watching what they're doing is being careless.
- JupiterMoon 11y agoWe have to remember that bots are written by humans and in this case merely implement a business process. There is no reason that the owner of the bot can't store their own logs of what take down requests are sent and with which version of their bot and therefore (given a well written bot) this should give them an adequate log of the reasons behind the take down notice. It seems to me like this ruling will cause the required sophistication of bots to be greater rather than precluding their usage.
- Natsu 11y agoEvery one of them is also, nominally, signed by a lawyer. There are words for lawyers that don't have records of the things they've signed and 'responsible' isn't among them.
- JupiterMoon 11y agoWhilst I sort of agree with you (and also think that IP law is absolutely stupid in many respects at the moment). The shear number of potential infringers that the internet as a distributed publishing platform has created vs the number of people that can be employed creates a situation where automation is required. I don't see any reason why the legal process encapsulated by the bot can't be the thing that the lawyer signs off on and takes responsibility for. EDIT: Over here in the UK there is precedent that lawyers for e.g. speculative invoice cases involving copyright claims (also know as copyright trolling) can have their right to practise law revoked if the claims are found to be spurious. Maybe lawyers that evaluate DMCA takedown bots should face similar consequences if the bot is too heavy handed? This could create the correct incentive for them to ensure that obvious fair use is accounted for.
- Natsu 11y agoI can agree with that if they actually take responsibility for it. I'm just saying that running one with no logs and little oversight is inherently irresponsible behavior. I rather like that UK precedent.