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Archive for the ‘Notice and Takedown’ Category

The updated EFF report entitled Unintended Consequences: Ten Years Under the Digital Millennium Copyright Act which assesses the problematic application of the notice & takedown provisions of the US legislation is definitely worth reading. [Yaman Akdeniz]

EFF Marks 10th Anniversary of DMCA with Report on Law’s Unintended Consequences | Electronic Frontier Foundation

October 27th, 2008
EFF Marks 10th Anniversary of DMCA with Report on Law’s Unintended Consequences
Ten-Year Legacy of Harm to Fair Use, Free Speech

San Francisco - Ten years ago Tuesday, the Digital Millennium Copyright Act (DMCA) was signed into law. In a report released to mark the anniversary, the Electronic Frontier Foundation (EFF) documents the ways in which this controversial law has harmed fair use, free speech, scientific research, and legitimate competition.

‘Unintended Consequences: Ten Years Under the DMCA’ focuses on the most notorious aspect of the law: its ban on ‘circumventing’ digital rights management (DRM) and ‘other technical protection measures.’ Instead of protecting against copyright infringement, this ban has routinely been used to stymie consumers, scientists, and small businesses. ‘Unintended Consequences’ collects reports of the law’s most egregious abuses over the last decade. In 2003, for example, Lexmark used the DMCA to block distribution of chips that allow the refilling of laser toner cartridges. In 2006, computer security researchers at Princeton delayed disclosure of a dangerous hidden program in some Sony CDs based on fears of DMCA liability. Meanwhile, the DMCA has not prevented digital piracy. DRM systems are consistently and routinely broken almost immediately upon their introduction.

‘Over the last ten years, the DMCA has done far more harm to fair use, free speech, scientific research, and competition than it has to digital piracy. Measured from the perspective of the public, it’s been a decade of costs, with no benefits,’ said EFF Senior Intellectual Property Attorney Fred von Lohmann. ‘The music industry has given up on DRM, and Hollywood now relies on DRM principally to stop innovation that it doesn’t like. It’s time for Congress to consider giving up on this failed experiment to back up DRM systems with misguided laws.’

For ‘Unintended Consequences: Ten Years Under the DMCA’:
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca

For more on the DMCA:
http://www.eff.org/issues/dmca

(Via Techdirt.)

The Web Thrived In Spite Of The DMCA, Not Because Of It: “While I was pointing out all of the reasons why the DMCA needs to be re-examined from scratch, Wired has put up an article detailing the one single positive aspect of the DMCA: the safe harbor provisions that protect service providers from liability for copyright infringement done by users. However, I think Wired, and the various people quoted in the article, give way too much credit to the DMCA for a variety of reasons. In fact, Wired goes way too far in claiming that the DMCA ’saved’ the web and allowed it to become what it is today, suggesting (incorrectly) that things like blogs and YouTube wouldn’t be successes without the DMCA.

First, the claim by an MPAA representative that without the DMCA movie studios wouldn’t have moved to DVDs is, at best, stretching the truth. While some studios would have been nervous, it wouldn’t have taken long for some studios to more aggressively experiment with DVDs, and early success would have made studios unwilling to hold back. Besides, it’s not as if the DMCA has actually done anything to protect DVDs. DVD ripping software is widely available.

As for the safe harbor provisions, there’s plenty of reason to believe that we would have reached the same legal situation even without the DMCA’s safe harbors. Two years prior to the DMCA, the CDA was passed, and while pretty much all of that law was thrown out as unconstitutional, the bit that remained was the famous section 230, which provides a very similar safe harbor for non-copyright issues. It’s not difficult to believe that in the absence of a DMCA, section 230 would have been expanded to cover copyright. And, even if section 230 wasn’t extended explicitly, one would hope that the courts would have established the exact same precedent by noting how ridiculous it is to blame a service provider for the actions of its users. The fact that we even need safe harbor provisions is ridiculous. It should be common sense that liability should be placed on the actual party to do the action, rather than any service provider that was used in the process.

Finally, Wired talks up the whole notice-and-takedown process, which has been a tremendous burden for many sites. While Wired does highlight how the notice-and-takedown process has been regularly abused, it still gives too much credit to the whole system. If Congress really had to have a formal takedown process, it makes perfect sense to have a notice-and-notice system, where the accused infringer would have a chance to respond to the charges before the content is taken down (innocent until proven guilty, blah blah blah).

So, yes, the safe harbors provided by the DMCA are a good thing — but to extrapolate from that and a few other questionable points that the DMCA is responsible for the rise of things like blogging and YouTube is hard to square with reality. It’s quite likely that things wouldn’t be all that different in the absence of the DMCA — except we’d have a lot fewer abuses of it.

Legal Crackdown Jams Michael Moore’s ‘Slacker Uprising’: “Takedown letters go out after the documentary, distributed online as a free gift to the filmmaker’s fans, shows up on torrent sites.

(Via Wired News.)

Scientology critics fight YouTube takedown notices: “

Push Me F*ck You

Net users are fighting back against attempts to remove content critical of the Church of Scientology (CoS) from YouTube.…

“

(Via The Register - Public Sector.)

Judge: Copyright Owners Must Consider ‘Fair Use’ Before Sending Takedown Notice: “A federal judge rules that copyright owners must first consider ‘fair use’ before sending takedown notices to online video-sharing sites like YouTube requiring removal of clips. Universal Music argued it could send a takedown notice even if a posting qualified as a fair use of a copyright.

(Via Wired News.)

Olympic Committee Takedown Shows Risks of Ill-Timed Take-Downs | Electronic Frontier Foundation: “Olympic Committee Takedown Shows Risks of Ill-Timed Take-Downs”

Deeplink by Corynne McSherry

It’s never OK to use improper copyright claims to take down legitimate, non-infringing content, but such takedowns are particularly galling when they are timed to directly interfere with the impact of a political message. That’s what happened this week to the Free Tibet movement, and the situation illustrates the risks of a “shoot first, ask questions later” approach to copyright policing.

The 2008 Olympic Games have been marked by controversy relating to the human rights record of its host, China. Two days ago, the International Olympic Committee (IOC) added to the debate by demanding that YouTube block a video of a protest by Students For A Free Tibet. The demand appeared to be based on a bogus copyright infringement claim: the protesters had projected various images on the wall of the Chinese consulate in New York, and the video of the protest was titled “Beijing Olympics Opening Ceremony.”

This is not the first time the IOC has used an intellectual property claim to stomp on speech. Nor is it the first time a content owner has caught a dolphin in its DMCA takedown driftnet. But the political and time-sensitive nature of this video made this “mistake” particularly appalling.

The blogosphere reacted with outrage, and rightly so. EFF made some inquiries of our own (we understand YouTube did so as well) and the IOC ultimately withdrew the complaint. That is a good thing. But this takedown highlights a larger problem. It takes just seconds to have a video taken down, but over two weeks to get a video put back up. And YouTube’s hair-trigger content verification program has made takedown even easier and faster—content owners can rapidly create lists of videos for takedown, and then send a takedown demand with a couple of additional clicks.

If IOC had not withdrawn its notice, here’s what would have happened in this case: the protesters’ DMCA counter-notice would have started the clock running and, if the IOC didn’t sue within 10-14 days—which of course it wouldn’t have, because it didn’t have a claim—the video would be restored. But that wouldn’t happen until after the 2008 games were over, and the delay would inevitably lessen the video’s political impact. As political organizers of all stripes know, timing is everything.

The DMCA was not designed to help content owners silence legitimate speech, even temporarily. But that’s exactly what happens when content owners don’t bother to form a good faith belief that the material they target is actually infringing. Shame on the IOC for failing to meet its minimal obligations.

(Via Techdirt.)

The IOC Joins the DMCA Censorship Club: “The International Olympic Committee is no stranger to overzealous protection of what they perceive to be their intellectual property. We’ve covered their ridiculous attempts to change British law to ‘protect’ the terms ‘Olympics’ and ‘2012′ (the year London hosts the summer games). It seems the folks at the IOC want to control all aspects of their sporting event, even how people discuss it. Knowing this, and the ways in which the DMCA has been abused time and time again, it was hardly surprising when the IOC sent a take-down notice to YouTube for a video posted by Students for a Free Tibet.

The video, which showed a pro-Tibet candle-light vigil in New York City and images from the March protests in Tibet, was dutifully pulled by YouTube. However, it was unclear what infringement the IOC was claiming. Although their famous interlocking rings were briefly shown, that would seem to be a trademark, not covered by the DMCA. Even if they claimed the rings were copyrighted creative content, their creation in 1913 places them firmly in the public domain (on copyright, the trademark remains — but the DMCA isn’t for trademark). Luckily after a number of sites questioned the action, the IOC withdrew their complaint. This remains troubling, though. The DMCA was not meant to silence legitimate speech, but the number of times litigants have suppressed content they don’t like is staggering. This case benefits from external media attention due to existing hot-button political issues, but not all censored YouTube videos are so lucky and, undoubtedly, bogus DMCA requests have censored videos which result not in blogosphere outrage, but silenced expression.

Kevin Donovan is an expert at the Techdirt Insight Community. To get insight and analysis from Kevin Donovan and other experts on challenges your company faces, click here.

(Via Techdirt.)

Viacom Ignores Promise: Sends Bogus Takedowns To YouTube: “You may recall that back before it sued YouTube, Viacom sent the company 100,000 takedown notices, many of which turned out not to violate Viacom’s copyrights. At first, Viacom tried to brush it off as totally innocent collateral damage, but after the EFF filed a lawsuit pointing out that false positives violate the part of the DMCA where each takedown must swear that the sender is the legitimate copyright holder, Viacom not only backed down, but promised to be much more careful with its takedowns. Specifically, it promised to actually review each video before sending a takedown.

However, it now appears that Viacom may not be living up to that promise. Consumerist notes that Viacom has taken down an independent filmmakers’ movie to which it has no copyright claims whatsoever. The animation in question was the woman’s senior project, and was not a Viacom property at all.

The video remains up for now, but Viacom now gets access to all the viewership stats on a video property it has no rights over, and the filmmaker, Joanna Davidovich, is rightfully worried that the movie is going to get taken down by a big media company who has no right to it at all.

Update: Viacom has now apologized and admitted its mistake, claiming that the video had been included in a Viacom film festival, and Viacom didn’t realize that they did not retain the copyrights to the material. While the filmmaker in question is satisfied with this result, it’s still quite questionable. Viacom still filed a false takedown notice after specifically promising that it would not. Filing false takedowns, even done with good intentions is still a violation of the DMCA and can be quite chilling to content creators.

AP To Meet with Bloggers Over Guidelines: “The Associated Press plans to meet Thursday with the Media Bloggers Association to help craft standard under which AP stories can be used by bloggers. The AP recently demanded that the social news site Drudge Retort remove AP headlines and excerpts of stories, exacerbating a debate over the difference between fair use and copyright infringement.

(Via Wired News.)

AP may have to take on entire blogosphere, warns attacked blogger: “A major news agency has claimed that a blog’s quotation of its stories is copyright infringement and has demanded they be taken down in a case which could redraw the lines of acceptable blog behaviour.”

(Via OUT-LAW News.)