6 ms·

The part of the DMCA that lets sites and ISPs host/transmit user uploads without being sued on a daily basis is pretty nice.

mindslight 11y ago
I don't recall ISPs being sued [and found liable] before the DMCA. That seems akin to the phone company being sued for someone singing happy birthday over their lines. IMHO being thankful for "safe harbor" seems more like a post-rationalization than anything else. If poor definitions meant common carriers weren't actually exempt, then that could have been resolved with straightforward clarification instead of an unnecessary "compromise".
- dangrossman 11y ago
  Playboy Enterprises, Inc. v. Frena (1993) and Sega Enterprises Ltd. v. MAPHIA (1994). Both were held liable for unauthorized copies uploaded by users.
  - AnthonyMouse 11y ago
    > Playboy Enterprises, Inc. v. Frena (1993) and Sega Enterprises Ltd. v. MAPHIA (1994). Both were held liable for unauthorized copies uploaded by users. ...in much the same way as Grokster and Napster, DMCA notwithstanding.
    - jamespo 11y ago
      Grokster & Napster responded to DMCA takedowns promptly did they?
      - AnthonyMouse 11y ago
        In which case was that why they lost?
    - lmm 11y ago
      Post-DMCA it became a requirement to demonstrate that they were supporting copyright infringement (e.g. by showing screenshots of searching for and downloading songs that were not licensed for distribution that way in their marketing material) - see the Limewire case and the ongoing MegaUpload saga.
      - AnthonyMouse 11y ago
        20th century BBS operators wore eye patches and drank rum and sailed the seas on wooden ships. The DMCA would not have saved them, so pre-DMCA cases where they lost tell you very little about what would happen to Google or Verizon without the DMCA.
  - mindslight 11y ago
    (Well, a BBS is more akin to a website, but the shifted argument is still valid if one thinks "web 2.0" is a good thing. And MAPHIA seems irrelevant due to its significant findings of editorial control) "Frena" wasn't necessarily a correct decision, especially given the extreme power imbalance between parties. Would the same decision be reached if the defendant had been a well capitalized business? Similarly, the modern inverse of an individual file sharer trying to hide behind the DMCA likely wouldn't fly. The decision certainly goes against what one would expect from general legal principles, but I suppose that's inevitable in the face of cancer like intent-free criminality. The same reasoning would have indicted him for a cd-r tossed onto his lawn.
jdjb 11y ago
Arguably, the only reason you have to worry about the lawsuits is because of stupid IP laws in the first place though.
- dangrossman 11y ago
  Is the argument that copyright law was a stupid idea, or that 18th century lawmakers were stupid not to consider the law's impact on the internet?
  - Maken 11y ago
    The stupid thing is how 18th century's laws were updated on the 20th century.
  - zanny 11y ago
    200 years ago when IP had volume costs associated with it, where there was no way for creator to interact with consumer, they were useful. Flawed, but served their purpose. Today, the purpose is lost, and the use is exploitative.
    - mindslight 11y ago
      The original purpose was to incentivize creative works, and the desirability of that hasn't really gone away. For example, Free software would be a lot further along if there could be a lucrative business model behind it. Enforcement is just utterly at odds with physics and at this point, the idea of "owning" control of bits in someone else's possession is incompatible with a free society.
      - tremon 11y ago
        Actually, it was "to promote science and the useful arts". Not all creative works.
        CuriousSkeptic 11y ago
viraptor 11y ago
A part of that part is nice, yes. There's a different part of that part which forces them to take anything down on any valid request. That means you can request taking down any service at all if you made an "honest mistake". (for example https://www.techdirt.com/articles/20150728/05285531772/wordpress-takes-stand-against-abusive-dmca-takedown-notices-others-should-pay-attention.shtml https://www.techdirt.com/articles/20150728/05285531772/wordp... but google knows much more)
- 0xcde4c3db 11y ago
  Another way the process is biased in favor of takedowns is that the counter-notification procedure is designed to thoroughly de-anonymize any individual who files one. A valid takedown notification need only contain "reasonably sufficient" contact information. A counter-notification is explicitly required to contain name, address, and phone number. I guess I can't fault the authors for failing to anticipate petty YouTube rivalries back in 1998, but it seems like the sole imagined use case was a respected corporation going after a pseudonymous warez jockey.
  - marcosdumay 11y ago
    > respected corporation What a funny concept you created.
- rhino369 11y ago
  You don't have to take down anything because of dmca. The only thing that happens is you lose protection if the content really was infringing. So if you are really sure, you don't have to do anything.
MereInterest 11y ago
Except that it does not require you to own the copyright in order to send a take-down notice. It does not even require you to have a reasonable belief that you own the copyright. All it requires is a "good faith belief".
- deleted 11y ago
  [deleted]
- deleted 11y ago
  [deleted]
- acdha 11y ago
  Your first claim is untrue - you must be the owner or their authorized representative. The good faith part only applies to your claim that the copy is unauthorized – you still have to describe the work precisely, and a responsibility to be accurate. Here's a good intro: https://www.copyrightalliance.org/2012/03/in-plain-english-a-quick-guide-to-dmca-takedown-notices https://www.copyrightalliance.org/2012/03/in-plain-english-a... The law is far from ideal but a large part of the problem is the penalties for false claims are rarely enforced so there's been little corrective force against the companies which robo-spam claims. Additionally, companies like YouTube have invented additional processes which are often Kafkaesque and, since they're just arbitrary business processes, aren't subject to the normal legal process.
rplnt 11y ago
Not really since it doesn't prevent abuse (in practice). edit: abuse as in fraudulent take down requests

mindslight 11y ago

I don't recall ISPs being sued [and found liable] before the DMCA. That seems akin to the phone company being sued for someone singing happy birthday over their lines. IMHO being thankful for "safe harbor" seems more like a post-rationalization than anything else. If poor definitions meant common carriers weren't actually exempt, then that could have been resolved with straightforward clarification instead of an unnecessary "compromise".

dangrossman 11y ago
Playboy Enterprises, Inc. v. Frena (1993) and Sega Enterprises Ltd. v. MAPHIA (1994). Both were held liable for unauthorized copies uploaded by users.
- AnthonyMouse 11y ago
  > Playboy Enterprises, Inc. v. Frena (1993) and Sega Enterprises Ltd. v. MAPHIA (1994). Both were held liable for unauthorized copies uploaded by users. ...in much the same way as Grokster and Napster, DMCA notwithstanding.
  - jamespo 11y ago
    Grokster & Napster responded to DMCA takedowns promptly did they?
    - AnthonyMouse 11y ago
      In which case was that why they lost?
  - lmm 11y ago
    Post-DMCA it became a requirement to demonstrate that they were supporting copyright infringement (e.g. by showing screenshots of searching for and downloading songs that were not licensed for distribution that way in their marketing material) - see the Limewire case and the ongoing MegaUpload saga.
    - AnthonyMouse 11y ago
      20th century BBS operators wore eye patches and drank rum and sailed the seas on wooden ships. The DMCA would not have saved them, so pre-DMCA cases where they lost tell you very little about what would happen to Google or Verizon without the DMCA.
- mindslight 11y ago
  (Well, a BBS is more akin to a website, but the shifted argument is still valid if one thinks "web 2.0" is a good thing. And MAPHIA seems irrelevant due to its significant findings of editorial control) "Frena" wasn't necessarily a correct decision, especially given the extreme power imbalance between parties. Would the same decision be reached if the defendant had been a well capitalized business? Similarly, the modern inverse of an individual file sharer trying to hide behind the DMCA likely wouldn't fly. The decision certainly goes against what one would expect from general legal principles, but I suppose that's inevitable in the face of cancer like intent-free criminality. The same reasoning would have indicted him for a cd-r tossed onto his lawn.

jdjb 11y ago

Arguably, the only reason you have to worry about the lawsuits is because of stupid IP laws in the first place though.

dangrossman 11y ago
Is the argument that copyright law was a stupid idea, or that 18th century lawmakers were stupid not to consider the law's impact on the internet?
- Maken 11y ago
  The stupid thing is how 18th century's laws were updated on the 20th century.
- zanny 11y ago
  200 years ago when IP had volume costs associated with it, where there was no way for creator to interact with consumer, they were useful. Flawed, but served their purpose. Today, the purpose is lost, and the use is exploitative.
  - mindslight 11y ago
    The original purpose was to incentivize creative works, and the desirability of that hasn't really gone away. For example, Free software would be a lot further along if there could be a lucrative business model behind it. Enforcement is just utterly at odds with physics and at this point, the idea of "owning" control of bits in someone else's possession is incompatible with a free society.
    - tremon 11y ago
      Actually, it was "to promote science and the useful arts". Not all creative works.
      - CuriousSkeptic 11y ago

viraptor 11y ago

A part of that part is nice, yes. There's a different part of that part which forces them to take anything down on any valid request. That means you can request taking down any service at all if you made an "honest mistake". (for example https://www.techdirt.com/articles/20150728/05285531772/wordpress-takes-stand-against-abusive-dmca-takedown-notices-others-should-pay-attention.shtml https://www.techdirt.com/articles/20150728/05285531772/wordp... but google knows much more)

0xcde4c3db 11y ago
Another way the process is biased in favor of takedowns is that the counter-notification procedure is designed to thoroughly de-anonymize any individual who files one. A valid takedown notification need only contain "reasonably sufficient" contact information. A counter-notification is explicitly required to contain name, address, and phone number. I guess I can't fault the authors for failing to anticipate petty YouTube rivalries back in 1998, but it seems like the sole imagined use case was a respected corporation going after a pseudonymous warez jockey.
- marcosdumay 11y ago
  > respected corporation What a funny concept you created.
rhino369 11y ago
You don't have to take down anything because of dmca. The only thing that happens is you lose protection if the content really was infringing. So if you are really sure, you don't have to do anything.

MereInterest 11y ago

Except that it does not require you to own the copyright in order to send a take-down notice. It does not even require you to have a reasonable belief that you own the copyright. All it requires is a "good faith belief".

deleted 11y ago
[deleted]
deleted 11y ago
[deleted]
acdha 11y ago
Your first claim is untrue - you must be the owner or their authorized representative. The good faith part only applies to your claim that the copy is unauthorized – you still have to describe the work precisely, and a responsibility to be accurate. Here's a good intro: https://www.copyrightalliance.org/2012/03/in-plain-english-a-quick-guide-to-dmca-takedown-notices https://www.copyrightalliance.org/2012/03/in-plain-english-a... The law is far from ideal but a large part of the problem is the penalties for false claims are rarely enforced so there's been little corrective force against the companies which robo-spam claims. Additionally, companies like YouTube have invented additional processes which are often Kafkaesque and, since they're just arbitrary business processes, aren't subject to the normal legal process.

rplnt 11y ago

Not really since it doesn't prevent abuse (in practice). edit: abuse as in fraudulent take down requests