DMCA: a double-edged sword

Copyright infringement or attack on free speech?

[Nick Jachelson]

Being an ISP of sorts (I allow visitors to submit articles on various topics), once in a while I get DMCA requests to remove what is claimed to be copyrighted material. I usually don't think much of it and comply right away. However, looking through all the requests today, I noticed a disturbing pattern:

About 50% of the requests were to remove articles critisizing a certain large US retailer (I won't name it by name, but I think most of you will be able to guess). In fact, I think they targetted ALL of the articles related to that corporation.

I really feel dumb now because I just went ahead and deleted them without noticing a pattern, certainly offending some of my contributors in the process. So while I enjoy the legal protections of the DMCA for me as an ISP, this is really dissapointing.

So far I made the "DMCA reporting" process more elaborate and time consuming and now perform greater dilligence before actually removing something.

What else can be done to separate real DMCA requests from the ones submitted by these clowns who disagree with the message in the articles?

[stapel]

Nick Jachelson said:

What else can be done to separate real DMCA requests from the ones submitted by these clowns who disagree with the message in the articles?

You're already asking for all the DMCA-required information, right? The "statement under penalty of perjury", for instance, and the direct link to the original content, and so forth?

You can follow the links to the claimed "original" content, to verify that it actually exists (and has a server date of something older than the timestamp of the e-mail you got). You can check the Wayback Machine to verify existance from further back.

You can also provide notice to the claimed infringer, providing a process for him to dispute the charge.

Eliz.

[outland88]

If its copying its copying. If it’s libel I don’t know if I would get wrapped up in that either. What percentage of these pages were being used for Adsense purposes?

[willjan]

Very simple, contact the content provider, offer them a chance to assert that it is original material. Notify the DMCA issuer, repost the material if the poster claims it is not a copyright violation, use a bit of common sense and if in your opinion it is reasonable and not a copyright issue repost.

You are off the hook, and the issuer of the DMCA has the option of going to court against the person who posted the original material. DMCAs don't involve libel.

As usual, get another opinion from a competent IP lawyer that your proceedures follow the DMCA "safe harbor" provision. Always be polite, and follow the law

Willjan

[jomaxx]

If you actually get so many DMCA requests in a day that you didn't notice this happening, I can't help but pity you. Yikes.

Anyway, as you've probably figured out, you need to have some kind of controls on these requests so that complete information is provided and SOME kind of check is done. I disagree that you can independantly verify who the originator of the content is -- the file date/time stamp does not indicate then those particular words or images first went online, computer time stamps can be easily faked anyways, and the original content may not even be online. But you need to have some kind of checks in place, if only because nobody wants bad actors to start misusing DMCA requests against voices they simply want to silence.