DMCA Collateral Damage And Monster Copyrights
Here’s a two for oner from TD, starting with:
Another Reason To Worry About DMCA Takedowns: Collateral Damage
In the wake of the DMCA takedown notice that forced Cryptome offline, the EFF is pointing out yet another massive in with the DMCA’s notice-and-takedown setup: it leads to a ton of collateral damage in getting legitimate, authorized, non-infringing content blocked by overzealous takedowns. Obviously, there are lots of cases of false takedowns or where there’s a fair use argument — but even if we assume that (in this example) Microsoft’s DMCA was justified, the fact that the entire site got forced offline should be seen as a major problem with the DMCA:
This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome’s beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was protected by the fair use doctrine). Because Network Solutions wasn’t willing to take that small risk, a whole lot of speech was temporarily disappeared.
As the EFF notes, this happens because the notice and takedown process lets copyright holders go after “the weak link” by moving further and further upstream to find a player in the chain who will take down the content, even if it means taking down much more:
Copyright owners reach out to a “weak link,” the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit–even if the service provider knows it will win–is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of “innocent bystander” customers.
The EFF also follows this up with a list of…
Read the rest of the article on TechDirt, also dont forget to check out our other recent (and related) post on the DMCA.
Related article from the EFF:
The Weakest Link Redux
We often criticize DMCA takedown abuse here at EFF, but last week’s Cryptome snafu highlights another facet of the problem: how a DMCA takedown for one item can result in the removal of lots of lawful material.
To recap, Cryptome posted Microsoft’s global criminal compliance manual. Microsoft sent a DMCA takedown notice to Cryptome’s domain name registrar and web hosting provider, Network Solutions, alleging that the post infringed copyright. Under the DMCA, a web hosting provider is protected from copyright infringement liability if, among other things, it “expeditiously” disables access to material properly identified in a DMCA takedown notice. Network Solutions asked Cryptome to remove the Microsoft compliance manual. Cryptome refused explaining that the document was posted in order to help the public better understand Microsoft’s practices, and followed up with a DMCA counternotice. Network Solutions promptly shut down the entire Cryptome website. Thus, a complaint about a single document caused significant collateral damage to the perfectly legal material on Cryptome.
This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome’s beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was protected by the fair use doctrine). Because Network Solutions wasn’t willing to take that small risk, a whole lot of speech was temporarily disappeared.
We’ve recently seen the same scenario with music bloggers, who may have their entire sites taken down as a result of complaints about a few links to music they’re reviewing.
And sometimes it’s not even enough to find a courageous hosting provider. Last year a takedown notice targeting a single site parodying the U.S. Chamber of Commerce resulted in a takedown of the websites of over 300 activist organizations hosted by MayFirst/PeopleLink. The Chamber of Commerce went “upstream,” targeting one of MayFirst’s upstream service providers, Hurricane Electric. When MayFirst pushed back, Hurricane shut off service, thus pulling the plug on unrelated websites, email and other online tools.
In all of these cases, copyright owners reach out to a “weak link,” the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit—even if the service provider knows it will win—is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of “innocent bystander” customers.
This unfortunate outcome is particularly ironic because Congress gave service providers protections in the DMCA. Service providers who care about free speech have better options:
* Remember, if your only relationship to the material targeted is that you provide connectivity to a downstream service, you should qualify for the 512(a) safe harbor, and, therefore don’t have an obligation to take the material down.
* Remember also that you don’t need the safe harbor if the material is a non-infringing fair use. In clear cases, you can bypass DMCA procedures.
* If thinking about fair use doesn’t make business sense, or you’re not sure, keep in mind that the DMCA requires only that you act “expeditiously” to respond to a takedown notice. Courts have found that providers should take down material within a few days of receiving a notice. So if you realize complying with a takedown notice will result in taking down much more material than the notice identifies, take the time to notify the person who sent the notice about the collateral damage it may cause. They may elect to withdraw it, especially where they are likely to face public criticism for causing an overbroad takedown.
* Give your customer a chance to re-jigger their service to avoid such collateral damage.
* Be sure to offer customers a clear counter-notice procedure—the DMCA provides protection for service providers that restore content in response to counter-notices.Customers who also care about…
Read the rest of the article on the EFF site, if the above article interested you we strongly suggest you check out the original article as it is filled with useful links.
And another article from TD that illustrates exactly how screwed up current copyright law is:
How Does Copyright Apply To Your Kids’ Monster Drawings?
Justin Levine has an interesting blog post up about a book I hadn’t heard of, called The Monster Engine. The author, Dave Devries, took children’s drawings of monsters, and turned them into paintings that use the identical line structure of the kid’s drawings (he projects them on the wall and then draws over them). Apparently, Devries’ work is quite popular, and people have talked about it on the internet for years:
Seems pretty cool. But Levine is wondering about the copyright issues involved in all of this:Given the fact that:
1. There is no doubt that the children’s original doodles are protected by copyright for their entire life, plus 70 additional years.
2. There is no doubt that Devries’ paintings of the doodles are ‘derivative works’ stemming from the original creations of the children.
Do you believe that Devries should be forced to get formal copyright releases from each and every one of the kids in question? Do you think he has done so? If so, should they be able to repudiate their copyright agreement when they turn 18 since many jurisdictions allow minors to repudiate contracts signed before they reach 18? If so, should they be able to take Devries’s work out of circulation?
Do you think that the children should all share in the royalties from books, art and showcases that Devries produces for the rest of their lives (and beyond – for 7 decades)? Do you think that is in fact the case of what is going on? If Devries hasn’t gotten a copyright release and/or isn’t paying royalties, do you feel that he is somehow “exploiting” these kids or “stealing” from them?
These are pretty serious questions — because under copyright law today, this book is trouble, and that’s unfortunate, because it looks like a lovely book. My guess would be that Devries actually had to get permission from…
Read the rest of the article on TD
Related article to the article on TD:
Questions and Challenges For Defenders of the Current Copyright Regime
Take a look at some the great works of Dave Devries from his “Monster Engine” project.Given the fact that:
1. There is no doubt that the children’s original doodles are protected by copyright for their entire life, plus 70 additional years.
2. There is no doubt that Devries’ paintings of the doodles are ‘derivative works’ stemming from the original creations of the children.
Do you believe that Devries should be forced to get formal copyright releases from each and every one of the kids in question? Do you think he has done so? If so, should they be able to repudiate their copyright agreement when they turn 18 since many jurisdictions allow minors to repudiate contracts signed before they reach 18? If so, should they be able to take Devries’s work out of circulation?
Do you think that the children should all share in the royalties from books, art and showcases that Devries produces for the rest of their lives (and beyond – for 7 decades)? Do you think that is in fact the case of what is going on? If Devries hasn’t gotten a copyright release and/or isn’t paying royalties, do you feel that he is somehow “exploiting” these kids or “stealing” from them?
If you answered ‘No’ to any of these questions, why not? Given how we know copyright law operates with respect to works created by media corporations, shouldn’t it apply similarly here? Or is copyright law only supposed to be for the “benefit” of authors when they are attached to big businesses backed by the legal system?
After all, some commenters on this site have argued that one should not be able to make an entirely new James Bond film without permission due to copyright restrictions. I presume that The Monster Engine should be forced to jump through the same legal hoops, no?
I can’t help but suspect that there is some major hypocrisy at work here in how copyright law is selectively applied in…
Read the rest of the article here which further links to: here (don’t forget to check out these cool drawings!)
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