6 ms·
>Frustratingly, Netlify made us go through the full DMCA counternotice process—including a 10-business-day waiting period to have the site restored—even though
by ziddoap 2y ago
>Frustratingly, Netlify made us go through the full DMCA counternotice process—including a 10-business-day waiting period to have the site restored—even though this was never a DMCA claim.
DMCA is a scourge.
I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes.
Edit: Just to be abundantly clear. My comment is a general comment on the DMCA, because the DMCA is mentioned quite a bit in the article, and the EFF was forced (erroneously) to follow the DMCA counter-notice process.
- bastawhiz 2y agoThis isn't DMCA, it's just Netlify having a silly process.
- ziddoap 2y ago>Netlify made us go through the full DMCA counternotice process
- tczMUFlmoNk 2y ago> —even though this was never a DMCA claim. (The DMCA is copyright law, not trademark, and TotalEnergies didn’t even meet the notice requirements that Netlify claims to follow.)
- deleted 2y ago[deleted]
- ziddoap 2y agoWith so many mentions of DMCA in the article, and the fact that the EFF had to go through a labyrinthine DMCA counter-notice process, you'd think I'd be allowed to comment about the DMCA... Apparently not. Sorry.
- deleted 2y ago[deleted]
- bastawhiz 2y ago> you'd think I'd be allowed to comment about the DMCA You are, you're just wrong
- ziddoap 2y agoOkay, thanks for your valuable insight. Your comments have really contributed to the conversation.
- xnorswap 2y agoPedants will rage but you're spot on. The DMCA is a terrible law that has ended up causing lots of knock on bad effects, because there isn't enough incentive to prevent bad actors abusing it, and not enough incentive for companies not to do what Netlify did in this case. The DMCA law did not _compel_ netlify to act this way, but the effects of DMCA did _cause_ netlify to act that way.
- IanCal 2y agoIf I make you go through the DMCA counternotice process for buying apples from me, that's not a problem with DMCA, it's me having an absurd process around purchasing apples. I don't see how people weirdly requiring this process shows an issue with DMCA.
- deleted 2y ago[deleted]
- stackghost 2y agoGood grief. Is it not obvious that the DMCA's very existence has created a shield that enables such shenanigans?
- piltdownman 2y agoOnly in the same totemistic, cargo-cult quality that GDPR has for basic data operations tangential to PII. In short, without explicit punitive penalties enshrined in the legislation itself, you will never be able to stop Corporations wielding consumer-facing legislation in an asymmetric and bad faith manner. This is as true of GDPR and AML/KYC legislation as it is of DMCA and similar abuses of copyright and IP laws by lobbyists.
- Dylan16807 2y agoIt seems to me that these processes are generally following the intent of the DMCA process, which is very different from spiteful responses to GDPR. I think a closer analogy to GDPR would be companies turning off tracking for a bunch of people outside the EU, and I would lay most of the blame/praise for that at the feet of GDPR.
- KerrAvon 2y agoIt is a problem with the DMCA because the DMCA makes companies do this to CYA because your apple purchase might be circumventing copyright and it's easier just to assume it applies to everything than to narrow it to actual copyright violations. It is a very bad law, it should never have been written, and it, not Obamacare, should be repealed.
- lesuorac 2y agoYou can call a spade an apple but it doesn't make it an apple. In order to have a DMCA counter notice there needs to be a DMCA notice. Their complaint is that there never was a DMCA notice so its not responsible to apply a counter notice policy as you are not countering a notice.
- bastawhiz 2y agoIt could just as easily say "the full Turboencabultor Counternotice process" but that doesn't mean it has anything to do with anything.
- xbar 2y agoNetlify will not spend money to figure out a more lightweight process in order to stay further from the edges of DMCA. DMCA is too scary to play with, so just they transfer the cost and risk by making the affected party file the form.
- bluGill 2y agoThe difference is if this isn't DMCA then Netlify is liable to the EFF for breach of contract.
- anamexis 2y agoWhat contract does Netlify have with the EFF?
- piltdownman 2y agoThere's no contract to be in breach of. What's likely to happen is SLAPP-esque legislation to stop platforms utilising its user base as its product, whilst simultaneously disenfranchising them from the moderation layer.
- ryandrake 2y agoI think one of the worst repercussions of the DMCA (there are so many), is how it seems to have perversely motivated tech companies to implement their own even worse bespoke processes for handling complaints--processes that are not actually DMCA. Like, DMCA is awful, but the process YouTube and others put you through is even worse, less transparent, and tend to put more, rather than less burden on the target/victim.
- SoftTalker 2y agoThe processes are deliberately complex so that most people will just give up. Then YouTube doesn't even have to consider the claim.
- toast0 2y ago> I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes. This isn't a copyright claim, so DMCA doesn't apply, but the DMCA rewards labyrinthine DMCA processes by granting the provider immunity. Following notice / counter-notice timelines in the law means the host is not liable to either of the other parties for the takedown or the restoration. Might be nice if there was a faster process to restoration if the customer vows to indemnify the host though.
- wbl 2y agoNo, it doesn't because trademark isn't copyright.
- bluGill 2y agoIs this really DMCA? Most take downs are not actually DMCA, they are different process that looks a lot like the DMCA. This is an important question because if this isn't actually a DMCA request but something similar than the EFF can go after the host for breach of contract by not serving their legal content (or the EFF signed a bad contract that allows the host to take down their content arbitrarily - though even then the courts may say this content should not have been covered). If this actually is the DMCA, then the notice is made under penalty of perjury and the EFF should press charges against whoever sent the notice - doing their best to get an example made of this person (probably a lawyer who should be removed from the bar for their actions once it is shown they committed perjury as part of their legal duties and thus are not ethical)
- marcosdumay 2y ago> I think the whole thing is dumb It's not, it's very smart. You probably are misidentifying the goal of the people that created it.
- ziddoap 2y agoI don't care about the goal, I care about how it is actually used in practice.
- ccvannorman 2y ago"goal" in this case meaning not "good for the economy, most businesses, and everyday people" - I think the implicit goal being "give asymmetrical power to larger and more entrenched organizations, at the detriment of literally everyone else, to help maintain and consolidate power." I've gotta admit DMCA has been extremely beneficial as a regulatory capture method.
- stackghost 2y agoThe way it's currently used in practice is exactly how it was intended.
- pwg 2y ago> but at the very least there should be some form of punishment for bogus DMCA claims As numerous other comments accurately point out, this was never a DMCA claim. However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate. The punishment would then be the recipient suing the sender for perjuring themselves in the sending of the bogus complaint. The problem is that is a very hard case to prove, and requires the expense of a lawsuit, so it is seldom ever taken by those who receive bogus complaints.
- Dylan16807 2y ago> However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate. Perjury only applies to the "proper rights holder" part. Being very reckless about sending out claims has no punishment.