We come to praise DMCA, not bury it ...
I want my takedown notice now
Letters Recently we recounted our experience with our first takedown notice (How to gag your enemies using the DMCA). This prompted an outburst of anti-American email, which is par for the course these days, and so to be discounted, and also some outbursts against The Reg.
Choice cuts served to you on a plate:
As a web software developer, we have at times been forced to use the DMCA notification process when someone is running a pirated version of our software on their site and refuses to remove it or license it. It has proven quite effective.
If you receive DMCA 'take down' attempt, you should respond by making clear you dispute the notifier's claim of ownership of the material and are entitled to use it. The ISP has fulfilled their obligation and can say that their client warranted under threat of perjury that the material was not infringing.
In this case, the complainant would have to take out an injunction or otherwise go to law to force removal. Even if their claim is genuine, only those who are really bothered will go to such lengths. Of course, you need to sign a sworn declaration that "to the best of your knowledge" the material is non-infringing. Fair enough really. The threat of perjury should hopefully stop those who know they are infringing from claiming otherwise.
In my opinion the DMCA is actually slanted towards the offender (or legitimate user) for a number of reasons:
1. It does not require immediate take down until the rights to content are confirmed (infringer can continue to use content for up to 24 hrs, or more judging by the speed more ISPs operate at), even if the content publisher clearly has no right to use the content whatsoever.
2. All it requires is the infringer to swear that they believe the content is non-infringing. Some of the low life scum who steal and pirate software have no qualms about adding perjury to their other crimes, forcing the onus back on the copyright owner to seek legal redress. It would be an improvement if the ISP was also required to remove material if it believed beyond reasonable doubt that it was infringing (i.e. scumbag claims ownership of the code, but the ISP sees copyright notices in it naming the complainant as copyright owner).
In my experience, the DMCA is a very valuable contribution to the enforcement of rights and the abuses should be easily dealt with if ISPs follow the procedures sensibly. It does not result in immediate removal of content purely as a result of bogus claims, instead it just forces a legitimate user of content to explicity make clear their position and right to use the content under threat of perjury. Most spurious uses should therefore easily be batted into touch.
Imagine network providers were under the same obligation to remove spammers, spamvertisers and virus infested machines. We would not see major spammers residing on bulletproof pink contracts on major network providers and ISPs.
As a British individual hosting services in the US, I've also been caught out by their ridiculous over-reaction to DMCA take down notices. Mine also arrived in the middle of the night and resulted in the plug being pulled before I could do anything about it.
The whole sorry story of my attempt to run a Tor (tor.eff.org) server at a US hosting can be read here:
Hoist by your own petard? The Reg has had a fairly consistent pro-copyright owner, pro-DRM editorial stance [WHAT???!!! - Ed]. At least in my view, the site has been unsympathetic to organizations like the EFF who have taken the side of the citizenry against the big corporate interests.
Copyright, at least in the American tradition, was a social contract to balance the needs of the free market (encouraging creativity by means of compensation for work done) and the needs of society (to preserve and disseminate knowledge that raises the level of civilization). In the US this was implemented as a set of constraints on the copyright holder, to limit the length of time and conditions under which copyright could be enforced.
Today, the perverted copyright laws and DMCA have completely destroyed the social contract. Copyrights enforcement periods extend far beyond the useful lifetime of the information (or even the media on which the information is stored), and Congress has been bribed to create laws like the DMCA which are used not for enforcement but for intimidation and pre-emptive restraint of trade. Not only is it anti-social, but it is even more anti-free market.
I hope The Reg and other information providers take this lesson to heart, that the current situation with intellectual property laws benefit only the strong, the well-connected, and of course, the lawyers.
Now for a fan letter from Oli, a regular correspondent, who usually calls for long jail sentences and big fines for the "moral degenerates" who download music illegally. Here he extends his sympathy to our predicament.
While this is EXTREME example of the DMCA being used to correct a relatively minor violation of law, I think the DMCA benefits FAR outweigh any inconvenience to legitimate websites who DO violate law. Certainly it would not have been the end of the world if The Rag was taken down for a few hours until your ISP confirmed the photo was removed.
People managed to get by some how... before The Rag and will continue to survive after The Rag is tits up. I much rather see the DMCA imposed than see crime continued unabated. And while you may not like the DMCA being imposed, it was completely proper to do so as The Rag did in fact commit a crime.