[nylug-talk] effective DMCA tricks

[Eric E Moore]

joe <joehark at earthlink.net> writes:

> Have you read the DMCA? Do you see the checks and balances in it? 

Just did.

The checks seem to be pretty weak on the notice and takedown to me.

1) The person making the initial notice has to provide:

     A statement that the information in the notification is accurate,
     and under penalty of perjury, that the complaining party is
     authorized to act on behalf of the owner of an exclusive right
     that is allegedly infringed.

   I'm unclear as to whether the statement that the information is
   accurate is made under penalty of perjury, I *think* not, which
   more or less means they're only liable if they falsely represent
   themselves as the agent of someone they're not the agent for.

2) The ISP is required to take the information down "expeditiously" or
   face possible liability.  They are further insulated from any
   liability for taking it down (even if the material is
   non-infringing), unless the person on whose behalf they're acting
   can provide counter-notification *after* the takedown (the person
   supposedly infringing gets no warnings).

3) If the ISP receives a counter-notification, the notifying party is
   guaranteed 10 business days in which to respond (a courtesy that
   the original "infringer" is not granted).  

4) The ISP remains non-liable for not providing the services the
   accused infringer after 14 days of counter-notification, if they
   are informed that the notifiers have initiated legal action.

5) The ISP *is* liable for copyright infringement if they restore the
   information after the counter-notification.

Thus, the ISP is basically totally indemnified if they take it down,
but not if they leave it up, or put it back up after a
counter-notification.  

If the "notifier" then files for a court case, they are immediately
granted a de-facto preliminary injunction because the ISP is not
liable for failing to provide service if they leave it down, but could
be for infringement if they put it back up.  Not being dumb, they'll
leave it down.

What's balanced about that?  

Balanced would seem to me to be something like:

a) party A complains to ISP about party B
b) ISP tries to notify party B
c) if party B has not filed a counter-notification in 10 days, ISP is
   not liable for taking the material down after that.
d) if party B does provide counter-notification, ISP is not liable for
   infringement, until a court actually grants an injunction.

> Someone's abuse of a law that protects the rights of thousands of
> creators does not not necessarily mean that the law is bad. The abuser
> is bad. Amending the law to punish abuses is an alternative that I'm
> not hearing in this discussion. 

Well, if it had checks and balances, as you claim, this would not be
necessary.  The absence of these checks and balances is what makes it
abusable, and a bad law.

> I acted within the letter of the law and got a just result. The DMCA
> process leveled the playing field between me and very wealthy, very
> arrogant thieves. Had the thieves  thought themselves abused by what I
> did, the DMCA contains a simple process for putting their stuff back
> on the Internet. 

Not really, the process is stacked against them.  Their providing
counter-notification does not free the ISP of liability, it just
allows them to sue the ISP for not providing the services.

> They then would have the option of coming after me criminally or
> civilly or both, had I violated their rights. They did not even try.

They have no such right under the DMCA.  The ISP is liable to them for
leaving their material offline 14 days after the notification.  They
cannot sue anyone for the 14 business days their material was offline,
and I see no provision whereby you were liable for anything (aside of
course, from the "usual legal procedures" you so decry, and even
there, I'm not sure for what).

Unless you read the penalty of perjury as applying to the whole
notification, in which case you could be in trouble.

-- 
Eric E. Moore
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