Forum Moderators: not2easy
[mylaw.usc.edu...]
Over half—57%—of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;Over a third—37%—of the notices sent to Google targeted sites apparently outside the United States
Ouch. What was even more chilling is the DMCA notice was done "generally without notice to the target"...
(ooops "frivolous"...)
Filing a DMCA notice, which I have unfortunately been forced to do many times after a well known photograph of mine has been "pirated", is serious business. It is done under penalties of perjury and if filed "friviously" could lead me, the copyright holder, into serious legal problems.
The authors also paint "fair use" with a broad brush. Fair use may be a fuzzy area for them, but the four major points used to decide are clear and the do not properly identify them.
Willjan
The logic is -
* if the DMCA notice is frivolous, and the host acts, the host is sheltered both from the alleged violator whose material is to be removed and from the DMCA filling entity.
* If the DMCA filling is not frivolous, then acting, protects the host.
* If the DMCA is frivolous, and the host does not act, then there are no legal ramifications.
* If the DMCA is not frivolous, and the host does not act, then the host is liable.
Therefore the DMCA forces host into the only logical and business sensible move to do. Act on all DMCA notices, frivolous or not.
Note that I did not throw in the counter filling, or following up for penalties. The cost of DMCA filling is a fraction compared to recovering lossses from a frivolous DMCA filling. Not just that, DMCA fillings are accepted from foreign entities and acted on, but most likely recovery would be impossible or cost prohibitive if the filling is frivolous.
The correction to this would be to require the DMCA filling entity to notify both the host and the alleged violator, and present proof of notification to host, and giving time to the alleged violator to respond. Although there is a provision for this in the DMCA, few hosts seem to follow it.
[edited by: Tapolyai at 9:22 pm (utc) on Nov. 28, 2005]
A physical or digital signature of the owner of an exclusive copyright right (i.e., the copyright owner himself or the owner's exclusive licensee of the right(s) to reproduce, distribute, display, perform or create derivatives) or the owner's authorized agent;
A description of the works claimed to be infringed;
A description of the allegedly infringing works, sufficient to enable the agent to find them;
Sufficient information to enable the agent to contact the complainer;
A statement that the complainer believes in good faith that the use of the material is not authorized by the owner, the owner's agent or the law; and
A statement that the information in the notice is accurate and, under penalty of perjury, that the complainer is authorized to act on behalf of the owner of one or more exclusive copyright rights.
I'd read the entire Copyright Act (DMCA 1998) as well.
Willjan
The problem is not (just) with law, but the implementation and one sided "enforcement".
They would be required to put the material back up unless the original complaintant filed a law suit. Something that takes considerable money and effort.
I'm bothered by the fact that to protect my copyright I have had to spend considerable time tracking infringers, issuing DMCAs and now hiring lawyers.
Willjan
They would be required to put the material back up unless the original complaintant filed a law suit. Something that takes considerable money and effort.I'm bothered by the fact that to protect my copyright I have had to spend considerable time tracking infringers, issuing DMCAs and now hiring lawyers.
I have no disagreement that anyone infringing on anyone's copyright should be delt with appropriately.
A personal example - DMCA notice arrived at my host. Host removed content. Took a week to put the content back up with my counter claim and proof of ownership. So there goes a week of business. Guess what happened a month later? DMCA notice to host, who promptly complied. Same content different copyright claimant. Week down the drain again to put content up.
Why didn't I follow up with a lawsuit? Because the DMCA notice came from overseas - and after further digging, also happen to be a competitor.
The problem is the "requirement" to act on presumed guilt by hosts, which a hosts must do to protect themselves.
I do not blame the host. I do not blame the copyright holder. I am simply stating that the law is flawed because it corners the host into action.
This is what I ment by "one sided", and implementation issues.
The big problem is that a takedown is seeking injunctive relief without any sort of hearing or bond. If you go to court and ask a judge for a preliminary injunction, you have to do two things, you have to convince the judge of the merits of your case, and you have to post a bond to cover the potential damages to the other side. With the DMCA there are neither of those things to prevent abuse.
Personally, I think moving away from registered copyrights to the everything is copyrighted system was a big mistake for content providers. It sounds like a good theory, but in fact it really muddied the waters when it comes to enforcing copyright.
I have read many of your posts and find them very much on target. Unfortunately, on this one, I have to strongly disagree.
When the Constitution established the basis for copyright protection and then the mechanics of "everything is copyrighted, but you can't legally enforce it unless it is registered" proceedures was a very different time.
Photography was not producing millions of images, artists were not proliferating, and the country was much, much smaller. The original purpose of registering work was to insure that the Library of Congress had copies of everything published for the country's benefit. They never imagined the sheer numbers of creative works to be hand carried through the LOC that modern times brought.
Most modern industrialised countries provide stringent copyright protection without the hurdles required by US registration.
Today, 90% of photographs used on the Internet are used without permission from the copyright holder! And the process to hold those who infringe are almost impossible to enforce. The DMCA has no teeth.
Some want to eliminate any copyright as infringing on free speech. Those who produce the intellectual property that advance knowledge would like to see protection that insures they can make a living.
The DMCA isn't perfect. But a society that allows wholesale use of copyrighted material without regard to ownership is ignoring the beneficial effects of creative artists, inventors, and writers.
Willjan
