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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 D

• dragonwriter 12y ago
  > I understand this argument, but it's a mistake. It's an incredibly dangerous position for and ISP to take and for what benefit? Its really not. Unlike with copyright owners, the ISP usually has the advantage in terms of resources and ability to maintain a legal challenge when compared to users. Unlike with copyright owners, the ISP usually has a contract with users which already allows them to take down any material, for any reason, in their sole discretion, making the DMCA safe harbor superfluous. Unlike with copyright owners, even if there were liability to users, that liability would (under well-established contract principles) be almost certainly limited to no more than the amount the user had paid for the service for the time in which the material was improperly kept down. > 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." How does that have any bearing. Each half of the DMCA safe harbor expressly applies based on whether or not you did the act you are required with regard to the party with liability in that case. So, the fact that you didn't do something with regard to some other party on the opposite side of a DMCA notice/counternotice exchange in a different case is irrelevant. > Is it an absolute fact this will happen? No, but the problem is it could happen Anyone could theoretically raise any argument no matter how little basis it has in the law, but that doesn't make it a real substantial risk.
  • joshuak 12y ago
    Well you and I disagree on the risks involved. And to what degree any organization can contractually exempt themselves from law. If they could they could also simply have a service agreement that says if you use the site you can't sue for copyright infringement and we wouldn't need the DMCA in the first place. My point is that the DMCA can be used as a get out of a lawsuit free card only if you comply with it. In all other cases you are exposed to a 'question' of compliance which requires the involvement of a finder of fact. That equals risk to me, and again to what end? However, if you comply fully with the DMCA you cannot theoretically or otherwise raise any argument against the ISP under copyright infringement or unlawful takedowns, period. Move away from complete compliance with the DMCA and yes you can still 'argue' that you are protected but you must pay to make that argument in the course of a suit. That to me is a liability, even from a winning position. Plus you are also exposing yourself to broader actions by cilvl liberties and other organizations working for the 'users' rights who did not agree to your questionable contract. That is a lot of risk to assume, for what purpose exactly? Laziness? Edit: Personally though I agree the DMCA is a poor tool for the job and needs to have much stronger teeth in favor of the users (read: citizens).
    • dragonwriter 12y ago
      > Well you and I disagree on the risks involved. And to what degree any organization can contractually exempt themselves from law. Its not an issue of "contractually exempting themselves from law". There's no law providing general liability to a user for an ISP taking down material. The only liability that would exist for doing so would be for breach of contract. Which would mean that there would have to be a contractual obligation not to take down the material for there to be a need for the DMCA safe harbor. Which ISPs routinely already avoided, before the DMCA even existed, by having contracts which expressly included provisions indicating that the ISP could take down material in their sole discretion. As regards to the user facing side, the DMCA safe harbor is, therefore, usually irrelevant. (There are no doubt some exceptional cases with atypical contract schemes where the contractual relationship is different -- but they aren't usual ISP or other content host to typical public user agreements.) > My point is that the DMCA can be used as a get out of a lawsuit free card only if you comply with it. In all other cases you are exposed to a 'question' of compliance which requires the involvement of a finder of fact. That's almost 100% backwards. Asserting an immunity to liability based on compliance with the DMCA is asserting a defense which requires the involvement of a finder of fact -- compliance with the DMCA is a question of fact. But whether question is relevant requires there to a basis for legal basis for a claim under which you could be held liable before considering the DMCA safe harbor -- which is often what is missing on the user-facing side. > However, if you comply fully with the DMCA you cannot theoretically or otherwise raise any argument against the ISP under copyright infringement or unlawful takedowns, period. Incorrect. You get to raise the argument first. The provider/host can then use its compliance with the specific DMCA safe harbor provisions relevant to its liability to you as a defense against that claim, and if it does so, it is immune from any liability. But they don't have to show that they "comply fully with the DMCA", they have to show that they complied with the requirements related ot the claim being advanced. If you are a copyright owner, they show that they complied timely with the takedown notice to get out of the copyright claim. If you are a user, they show that they complied with the counternotice to get out of whatever claim (presumably, contract-based) that the brought. But you first have to have a claim that doesn't get thrown out as a matter of law before raising the DMCA safe harbor defense even matters. > That is a lot of risk to assume Really? A lot of risk? Can you name one case where a succesful lawsuit was brought against any content host, ISP, etc., for failure to restore content subject to a DMCA counternotice? Or even for policies that involve more drastic than takedown penalties -- like contract termination -- for suspected copyright violation without any advance notice or opportunity to respond?
• mjg59 12y ago
  No. All I lose by not following 512(g)(2) is the protections that 512(g)(1) gives me, which are entirely limited to being sued over having taken down the material - eg, the customer suffers financial harm as a result of their website being unavailable, but can't sue me because I followed the terms of 512(g). The protection I have from the copyright holder suing me is under 512(c)(1). The 512(c)(1) protections are not conditional upon 512(g) at all.
  • joshuak 12y ago
    As I've said elsewhere I disagree with this position. And at the risk of beating a dead horse the text specifically says in various ways, and in various places the general concept that a service provider shall not be liable only if a number of general principals are followed that include the fact they are not participating in the selection process of the material. If they begin to participate they are not protected under Safe Harbor. For example 512 requires that: "the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider" Demonstrable proof of non automated selection such as failure to comply with a lawful counter-notice voids the ENTIRE protection. Companies such as Vimeo have lost protections under the DMCA safe harbor provisions for exactly this reason.