[nylug-talk] the DMCA is not all bad

[joe]

For starters, please note that I am not disagreeing with the issues stated 
here as to why the DMCA is bad. I don't know enough about Palladium and 
such to make intelligent comment.

But I do know that at least one part of the DMCA, specifically Title Two, 
is very important in leveling the playing field between me, as a 
professional freelance writer, and some very greedy and even larcenous 
publishers and web site operators.

Over the past few years I have used Title Two of the DMCA and relevant 
copyright law to instantly stop a number of instances of blatant theft of 
my work. All it took in each case was  sending one letter citing the DMCA 
penalties to hosting companies and search engines for being a party to 
those thefts.

For example, about 18 months ago (as I recall), I wrote a 6,000 word 
article, profusely illustrated, on the subject of programming the Palm 
Operating System and how to use every one of the then available RAD tools 
for doing that. I licensed the article for the usual one-time First North 
American Print Right to Hand Held Computer Magazine.  Some months later I 
discovered that Palm's web site was selling a CD containing all my 
material. After the publisher  of HHC rejected my request for payment for 
the extra use, including a reasonable share of the proceeds of the sale of 
the CD, the publisher laughed me off.  Told me to sue, knowing full well 
that a lawsuit would take years and easily cost 10 to 20 times what I might 
win.

So I contacted Palm, citing the DMCA. It was off the site in three hours 
and off the CD within a day. An arrogant thief was stopped.

Last month I discovered that the operator of www.samana-bay.com, a real 
estate developer also operating under the domain 
"oldsanjuanproperties.com", was promoting his deals by using unattributed 
text and photos stolen from my article published on one of my own web sites 
at http://travelthenet.com/columns/clips/whales.htm.

I have a lot of pride in that piece because it was the first ever written 
on the subject and in the 13 years since, it has spawned an entire tourism 
industry now generating millions of dollars a year for the community where 
it took place.  When I asked Mr. Paul Frynd to pay for a reasonable fee for 
what he had been doing and for future use if he wanted to continue, this 
guy (who apparently owns or controls some large Florida insurance 
companies) called me an asshole and told me he could do what he pleased. He 
even threatened me.

His web site is now dead. The hosting company took it down within four 
hours after getting my DMCA complaint and verifying that the site contained 
my work. Google it and you will find the site has been removed from their 
indexes and caches that serve Google, Yahoo and so on. Their failure to 
comply "expeditiously" (the exact word used in the law) would have 
subjected them to up to a possible $500,00 fine and prison time prosecuted 
by the feds plus civil damages from me.

Of course they complied. Why wouldn't they? Is the thief going to sue them 
for taking down the site? Not likely.

I could cite a list of corporate online thieves that I stopped by using 
DMCA against the hosting company. Am I against hosting companies? Hell no. 
I own one. But if any client were to post material taken from someone 
else's original work I would not need a DMCA complaint to drop him faster 
than a top-level gigaflop backbone connection.

So when I hear someone wanting to kill the entire DMCA just to solve 
certain of its provisions that you find onerous, I must point out that you 
would be taking away my own digital Smith & Wesson that stops copyright 
theft with one shot in the form of a Title II DMCA letter. I don't even 
need to shoot; just aiming the gun is enough to get cooperation.

I don't think that the intention of those who are calling for the absolute 
repeal of the DMCA is to hurt me and the tens of thousands of freelance 
writers and photographers who enjoy its protection against some very 
arrogant thieves.  But, the law of unintended consequences applies.

To avoid those consequences, some balance and careful review is needed. I 
ask that you consider amendment to satisfy your own goals while making sure 
you do not hurt those who have good reason to use other aspects of the law 
to protect against predations by large companies. .

As I said at the start, I have no argument against the hurts you claim. 
They deserve a hearing. If well founded, they deserve correction. But not 
not using such broad correction that it does collateral damage to people 
who might otherwise be your ally against over-bearing giants.

Respectfully,
Joe