3 ms·

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

by 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?
- joshuak 12y ago
  Haha, well damn, isn't this just the problem with law. You try to speak figuratively to communicate the gist of an idea abstractly (given the forum), and then someone comes along to explain how your figurative speech isn't literally correct. Ah well, like I said we disagree on the risk. In which I mean the cost of doing business, not the danger of losing a lawsuit. I think you've missed my point, and are conflating 'legal certainty' and 'winning argument'. Also you avoided addressed why a service would act against their own users in such a way, even if the perceived risk is small. (By the way I would argue many if not most, DMCA related litigation in which ISPs have lost shows that failure to comply strictly with all aspects of the DMCA was the ISPs downfall, please forgive me for not including citations ;) Nevertheless, you have excellent points as to why we need to replace the DMCA, and why there may be a perception that there is less risk in ignoring a restoration demand then complying with it.

by joshuak 12y ago

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?

joshuak 12y ago
Haha, well damn, isn't this just the problem with law. You try to speak figuratively to communicate the gist of an idea abstractly (given the forum), and then someone comes along to explain how your figurative speech isn't literally correct. Ah well, like I said we disagree on the risk. In which I mean the cost of doing business, not the danger of losing a lawsuit. I think you've missed my point, and are conflating 'legal certainty' and 'winning argument'. Also you avoided addressed why a service would act against their own users in such a way, even if the perceived risk is small. (By the way I would argue many if not most, DMCA related litigation in which ISPs have lost shows that failure to comply strictly with all aspects of the DMCA was the ISPs downfall, please forgive me for not including citations ;) Nevertheless, you have excellent points as to why we need to replace the DMCA, and why there may be a perception that there is less risk in ignoring a restoration demand then complying with it.