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People seem to be misunderstanding the point, and requirements of the DMCA Safe Harbor provisions. The take down procedure is to allow companies such as Github

by joshuak 12y ago

People seem to be misunderstanding the point, and requirements of the DMCA Safe Harbor provisions. The take down procedure is to allow companies such as Github to avoid being involved in a dispute in any way. Meaning if a lawsuit should occur they don't win because they complied with DMCA they get to avoid the suit altogether. Given one lawsuit can cost hundreds of thousands of dollars in litigation even for the winning side, it would be impossible for any ISP to operate in a climate where they could be dragged into every argument over content rights. Github is not the authority. They don't know if the code is inferring or not, so the DMCA says they can defer the authority (and liability) to those who should know, the ones who put the code up in the first place. It is unreasonable to expect Github to vet every open source project, and it is also unreasonable for Github to bare any legal responsibility just because one of their users, or a litigious copyright holder did something wrong. The DMCA Safe Harder is designed specifically to account for this. Although technically possible it is not legally possible to issue a DMCA take down by bot, since a bot can not provide: a statement by the copyright owner, a statement of the accuracy of the notice, or a statement under penalty of perjury that the complaining party is authorized to act on behalf of the owner. [My opinion is, if a real person uses a bot and then makes these statements under penalty of perjury, then every time that bot makes a mistake we (the tech community) should be filing Amicus curiae[1] with the court that they have perjured themselves. If you are a technically competent person you cannot honestly make a statement that your bot has not made any mistakes without human review.] The weakness of the DMCA Safe Harbor arises not in the above issues but rather in the fact that the DMCA requires that materials be taken down immediately before response by the allegedly infringing party[2]. To balance that (to some degree) if the allegedly infringing party follows the procedure to have the materials restored, then the ISP must restore the materials in 14 days unless the complaining party has shown evidence they have filed a case. In other words if a complaining party fails to immediately follow with a lawsuit the materials MUST be restored. [1] http://en.wikipedia.org/wiki/Amicus_curiae http://en.wikipedia.org/wiki/Amicus_curiae [2] http://www.chillingeffects.org/dmca512/ http://www.chillingeffects.org/dmca512/

dragonwriter 12y ago
> To balance that (to some degree) if the allegedly infringing party follows the procedure to have the materials restored, then the ISP must restore the materials in 14 days unless the complaining party has shown evidence they have filed a case. This is not, in fact, true. The provider is not required to restore the materials. The provider is, however, no longer protected from any liability to the user whose material was taken down that would have existed without the DMCA if they don't restore the material in response to a proper counternotice, but most proviers have already structured their contractual relationships with users so that they have no liability for that in the first place, so they don't need the safe harbor from the user, only the one from the copyright owner. Which is the real source of asymmetry -- the safe harbor is superficially symmetrical, but one side is protecting from liability that doesn't exist in the first place, so there is no incentive for compliance.
- joshuak 12y ago
  DMCA 512(g)(2)(C) If the copyright owner does not bring a lawsuit in district court within 14 days, the services provider is then required to restore the materials to it's location on its network. Edit: You cannot contractually exempt yourself from portions of the DMCA. It either applies, and you are protected under the Safe Harbor provisions, or it doesn't and you are not.
  - mjg59 12y ago
    No. The provider is required to restore the materials if they wish to continue receiving the protections from 512(g)(1). If the user has already agreed that the provider can remove work at will, there's no reason for the provider to care about the 512(g)(1) protections.
    - joshuak 12y ago
      I understand this argument, but it's a mistake. It's an incredibly dangerous position for an ISP to take and for what benefit? Why risk stepping outside the DMCA's protection? Here's why it's dangerous for the ISP: If I'm a copyright holder and find infringing materials on your service I will issue a take down notice. You take the materials down. All good you think. Nope. I then sue you (you've got more money then the infringer anyway). You say "but, but, your honor we complied with the DMCA" But I say "oh no you didn't you don't allow for your users to file counter-notices. Time for the court to decide." And now we're in trial, because you don't have DMCA protection. Is it an absolute fact this will happen? No, but the problem is it could happen, and that is exactly the liability the ISP is trying to avoid. And why, just so they can be an asshole to their users? There is absolutely no upside to exempting yourself from the counter-claim procedure.
Zigurd 12y ago
Issuing a false DMCA takedown notice may not be sanctionable under the DMCA, but how is it not the false, fraudulent assertion of copyright ownership? Surely there is nothing that excuses false assertion of copyright.
- hga 12y ago
  Nothing may excuse it, but to take two infamous examples where entities sued based on fraudulent assertions of copyright ownership, as determined in court, the SCO Group and Righthaven (https://en.wikipedia.org/wiki/Las_Vegas_Review-Journal#Copyright_infringement https://en.wikipedia.org/wiki/Las_Vegas_Review-Journal#Copyr...), nothing serious happened to the plaintiffs, other than of course losing their lawsuits and going bankrupt. (Others have mentioned Prenda Law, but that cit's behavior was so aberrant it's not a very useful example.)
  - Zigurd 12y ago
    QinetiQ and Qualcomm are both deep pockets.
paulgb 12y ago
> My opinion is, if a real person uses a bot and then makes these statements under penalty of perjury, then every time that bot makes a mistake we (the tech community) should be filing Amicus curiae Has this ever been done successfully? I found an example in Disney v. Hotfile[1] but it was eventually settled out of court and not in Hotfile's favour. An honest mistake shouldn't constitute perjury, but the shotgun approach is not acting in good faith. [1] https://www.eff.org/cases/disney-v-hotfile https://www.eff.org/cases/disney-v-hotfile
- joshuak 12y ago
  Yeah this doesn't seem to be done very often. I'm trying to encourage the behavior though because I often see that courts are easily confused by technical issues that are well understood by the community. This may or may not be such a case, but is calming your code is flawless under penalty of perjury an honest mistake?
  - x0x0 12y ago
    to summarize: your argument conflicts with observed reality, but you're nonetheless doubling down on it find a case, even one, where there has been a significant penalty for incorrectly issuing a dmca request
    - joshuak 12y ago
      I did not take a position one way or the other on incorrect takedown notices. I said it is my opinion that we as a technical community should try to help the court. Wether we have before, or wether it was successful or not, doesn't enter into it.
davidgerard 12y ago
This is all true, but completely misses the point: that THIS IS OBSERVABLY INSANE.

by joshuak 12y ago

dragonwriter 12y ago

> To balance that (to some degree) if the allegedly infringing party follows the procedure to have the materials restored, then the ISP must restore the materials in 14 days unless the complaining party has shown evidence they have filed a case. This is not, in fact, true. The provider is not required to restore the materials. The provider is, however, no longer protected from any liability to the user whose material was taken down that would have existed without the DMCA if they don't restore the material in response to a proper counternotice, but most proviers have already structured their contractual relationships with users so that they have no liability for that in the first place, so they don't need the safe harbor from the user, only the one from the copyright owner. Which is the real source of asymmetry -- the safe harbor is superficially symmetrical, but one side is protecting from liability that doesn't exist in the first place, so there is no incentive for compliance.

joshuak 12y ago
DMCA 512(g)(2)(C) If the copyright owner does not bring a lawsuit in district court within 14 days, the services provider is then required to restore the materials to it's location on its network. Edit: You cannot contractually exempt yourself from portions of the DMCA. It either applies, and you are protected under the Safe Harbor provisions, or it doesn't and you are not.
- mjg59 12y ago
  No. The provider is required to restore the materials if they wish to continue receiving the protections from 512(g)(1). If the user has already agreed that the provider can remove work at will, there's no reason for the provider to care about the 512(g)(1) protections.
  - joshuak 12y ago
    I understand this argument, but it's a mistake. It's an incredibly dangerous position for an ISP to take and for what benefit? Why risk stepping outside the DMCA's protection? Here's why it's dangerous for the ISP: If I'm a copyright holder and find infringing materials on your service I will issue a take down notice. You take the materials down. All good you think. Nope. I then sue you (you've got more money then the infringer anyway). You say "but, but, your honor we complied with the DMCA" But I say "oh no you didn't you don't allow for your users to file counter-notices. Time for the court to decide." And now we're in trial, because you don't have DMCA protection. Is it an absolute fact this will happen? No, but the problem is it could happen, and that is exactly the liability the ISP is trying to avoid. And why, just so they can be an asshole to their users? There is absolutely no upside to exempting yourself from the counter-claim procedure.

Zigurd 12y ago

Issuing a false DMCA takedown notice may not be sanctionable under the DMCA, but how is it not the false, fraudulent assertion of copyright ownership? Surely there is nothing that excuses false assertion of copyright.

hga 12y ago
Nothing may excuse it, but to take two infamous examples where entities sued based on fraudulent assertions of copyright ownership, as determined in court, the SCO Group and Righthaven (https://en.wikipedia.org/wiki/Las_Vegas_Review-Journal#Copyright_infringement https://en.wikipedia.org/wiki/Las_Vegas_Review-Journal#Copyr...), nothing serious happened to the plaintiffs, other than of course losing their lawsuits and going bankrupt. (Others have mentioned Prenda Law, but that cit's behavior was so aberrant it's not a very useful example.)
- Zigurd 12y ago
  QinetiQ and Qualcomm are both deep pockets.

paulgb 12y ago

> My opinion is, if a real person uses a bot and then makes these statements under penalty of perjury, then every time that bot makes a mistake we (the tech community) should be filing Amicus curiae Has this ever been done successfully? I found an example in Disney v. Hotfile[1] but it was eventually settled out of court and not in Hotfile's favour. An honest mistake shouldn't constitute perjury, but the shotgun approach is not acting in good faith. [1] https://www.eff.org/cases/disney-v-hotfile https://www.eff.org/cases/disney-v-hotfile

joshuak 12y ago
Yeah this doesn't seem to be done very often. I'm trying to encourage the behavior though because I often see that courts are easily confused by technical issues that are well understood by the community. This may or may not be such a case, but is calming your code is flawless under penalty of perjury an honest mistake?
- x0x0 12y ago
  to summarize: your argument conflicts with observed reality, but you're nonetheless doubling down on it find a case, even one, where there has been a significant penalty for incorrectly issuing a dmca request
  - joshuak 12y ago
    I did not take a position one way or the other on incorrect takedown notices. I said it is my opinion that we as a technical community should try to help the court. Wether we have before, or wether it was successful or not, doesn't enter into it.

davidgerard 12y ago

This is all true, but completely misses the point: that THIS IS OBSERVABLY INSANE.