[nylug-talk] the DMCA is not all bad

[joe]

At 08:16 PM 5/1/2003 -0400, you wrote:
>So it seems that the DMCA has an affect. Just mentioning it is enough to
>stop action? This is what the englobulators like: fear.

Kevin,

What do suggest is as an alternative for a lone freelancer like me up 
against the multi-billion dollar media-giants like The Tribune Companies, 
Murdoch's News Corp and The Newhouse Corporation, each richer than about 
90% of the nations in the world?  I am not an "englobulator."  I'm just one 
person.

I'm open to suggestion for alternatives. Please be specific and practical.

>You said the the isps' took the action. That would be because they are 
>being respectful
>of you rights and dont want to be sued under 'average' copyright laws.

No, not really. If you go look very carefully around in the web pages for 
AplusNet (the former host of Samana-Bay.com) or dig deeply into Google, you 
eventually will find their copyright compliance page and detailed 
instructions on the only form of notice they will acknowledge.
I have emails from each of them that clearly explained that unless I file a 
DMCA conforming letter, in hard copy, they are not required by law to do 
anything and, in fact will not.

As it was, Aplus at first, needed to have the law spelled out to them 
because the head techie on duty that night had not been properly prepared. 
He had a big mis-understanding that all he was required to do was ask the 
offending domain owner to be nice guy and take off my work.  But once he 
did read the language of that law, he was very professional and 
responsible. Had the law not been so specific, nothing would have been done.

Neither Google nor Aplus were acting, as you say, out of the goodness of 
their hearts. Had that been their motivation and had they acted upon it, 
without careful compliance with DMCA, they would not have any protection 
against a lawsuit from the same scumbags who stole my work and were 
perfectly capable of suing Aplus and Google, given the vulnerability, for 
taking down their web sites without the shield given them by the DMCA.

If you take a moment and read what are known as "safe harbor provisions" 
Title II of the Digital Millennium Copyright Act, 17 USC section 512. 21 
you will see that a web site or host's or search engine's responsibility 
and protection are very carefully tied together.  Once they get a complying 
complaint, they are empowered and protected for acting. The full text is 
online at http://www.loc.gov/copyright/legislation/dmca.pdf.

>The DMCA just turns the smith & wesson (c) into a Howitzer! You did not
>need the DMCA but it justs scares the bejesus out of any reasonable
>person. We need the 'average' laws to have better enforement not
>Howizters.

Can you suggest how that might work?  To give you an idea as to the 
effectiveness of remedies under the "average" copyright laws before the 
DMCA, it took the National Writers Union (see www.nwu.org) roughly 7 years 
and millions of dollars, to win a lawsuit against the NY Times and others 
(Mead Data, Lexis Nexis, etc.) for selling writer's work over the objection 
of the writers and without payment.

The US Supreme Court finally said they had abused the copyrights and must 
pay the writers. That was more than two years ago. They have yet not paid a 
penny to a single one of the hundreds of writers whose copyrights they 
abused. The lawsuit to collect those damages will probably take another 
seven years and more millions of union members dues (yes, I'm one of them) 
to win that fight. And would you be willing to bet if they will pay even then?