This underlines the craziness of copyright and intellectual "property".
If DMCA claims were expensive, companies would bother requesting takedown for the most profitable movies/albums/games only and they wouldn't go on autopilot, claiming whatever they think might infringe their copyrights. But then the garage bands and individual artists/musicians would be left out of the game completely, they couldn't use DMCA to take down their music.
On the other hand, how do you prove you are the author unless you have lots of money for lawyers? If you say "I composed this song at home, and published it under CC licensing" and MAFIAA say they represent the copyright holder, is it not clear who owns what?
If there was a digital notary service where you could digitally sign and timestamp a file, that might help a bit. But the downside is that people could take public domain works or someone's un-notarized works, claim ownership, have it stamped and they would begin to hold a stronger position pretending to be the author.
I think this is somehow similar to how indigenous people wondered how the white man could possibly think of owning forests, rivers, and land. They considered Earth unownable, not belonging to anyone but rather people belonging to the Earth. Similarly, natives to the digital world wonder how somebody could possibly think of owning bits, numbers, and copyable files.
I fantasize about a native american nation making a legal claim that copyright doesn't apply to them, because their culture is centered on sharing information, and that this philosophy is fundamental to their identity.
Followed, of course, by a file sharing service set up on tribal land.
If they can carve out an exemption for casinos, why not copyright? (I am not a lawyer, and am not interested in hearing about why this could or couldn't be done... I'm just fantasizing)
The reason is only federal law applies on native land, and only state laws govern whether casinos/gambling is legal. So they are exempt from the state law.
Federal laws, such as copyright, drugs, etc still apply.
We used to mail writings to ourselves as proof of ownership, an artist in music could write their sheet music then the lyrics mail it to themselves then assert that as a form of time stamped ownership. I know this is not electronic but its still evidence if needed.
You don't have to charge $1,000 for a DMCA to ensure it's only used for "serious" violations. You could at least punish the "wrong" DMCA with a $10,000 fee. It won't be quite as effective, but it wouldn't affect starting artists and it would still be orders of magnitude more effective than the current system in weeding out the bad DMCAs.
Electronic notarization is a process whereby a notary affixes an electronic signature and notary seal using a secure Public key to an electronic document (such as a PDF or Word document). Once affixed to the electronic document, the document is rendered tamper evident such that unauthorized attempts to alter the document will be evident to relying parties.[1] The e-notary will use cryptography and Public key infrastructure to create, manage, distribute, use, store, and revoke the digital certificate. The Electronic Notary also must keep an electronic register of each act performed.
I've sent DMCA takedown notices. A garage band could too. You don't have to prove you're the author to send a takedown notice, you merely have to assert it.
I'm thinking the parent comment's point is more that if I upload an original composition on YouTube and someone else issues a takedown request claiming to own the copyright it'd be really hard for me to dispute that if the person making the request had deep enough pockets. Not sure whether that is true though.
It's not true. All you have to do is to assert that you instead have copyright and that you indemnify the hosting party from any fall-out and your content will be right back up. They can still sue you after that but they could do that regardless. So the DMCA is actually pretty good when it comes to this aspect.
And in the case above you'd have to sue the party claiming to have copyright on your creation but that's optional.
Well, that's the way the law works, perhaps, but is that the way it is generally implemented? You occasionally hear about Kafka-esque takedown request disputes with big services like YouTube and I guess even if they're indemnified there's no obligation to put your stuff back up.
The GP's point as I read it was actually that if sending take-down requests was _made to be_ expensive, it would be less abused by RIAA types but also would become totally unavailable to the garage-band would-be enforcers.
Hmmmm. Optimal would be if it was made to be expensive when used in mass. If somebody sent a single lone take-down request for my work, in genuine mistake, I would not begrudge him at all, and would not seek to penalize them. To err is human.
But if somebody sent a take-down request for my work, and it happened because they had sent a million take-down requests to everything on the internet matching a string search, then I would begrudge them and seek to penalize them. They would have done so KNOWING that a huge percentage of them would be wrong, but deeming it acceptable since it's no cost to them.
Which means it is easy for trolls to use and abuse. What we need is something easy for content creators but hard for trolls, but the very nature of digital work makes this a very difficult, if not impossible, task.
I think what yason was trying to say is that how it currently works isn't the best option, but neither are obvious alternatives, such as making it a financial investment to send takedown notices.
"If DMCA claims were expensive... the garage bands and individual artists/musicians would be left out of the game completely, they couldn't use DMCA to take down their music."
>I think this is somehow similar to how indigenous people wondered how the white man could possibly think of owning
>forests, rivers, and land. They considered Earth unownable, not belonging to anyone but rather people belonging to the
>Earth.
A) North America has no indigenous people.
B) The people who did live here when the Europeans arrived did have ownership and private property. Sometimes owned by families and sometimes by tribes. And anyone who has even a basic high school education should be aware of the fact that there were Native American nations who controlled and owned territory and would exclude other nations from land use, hunting rights, fishing, etc.
A) Is there any reason the people who lived in North America in the year 1400 shouldn't be considered indigenous? B) Sure, many had ownership and private property. There were those who didn't as well.
That IMDB page http://www.imdb.com/title/tt2820852/ has several videos on it. It's possible that one of them was infringing. But even if it was, I doubt they would really want to delist the whole page from Google searches.
Just as a likely scenario that there could be a comment with a download link in it, download links are very commonly shared on twitter and Reddit so who knows...
Where are the criminal charges for purgery? This kind of abuse has gone on long enough. We need to start sanctioning every DMCA claim that has the least error in it. Every copyright agent should be living in fear of having their company fined and being jailed personally whenever they send a DMCA claim.
Which means that when you get an automated system to file the legal documents, you'll never get a deliberate misstatement. If this was a lawyer going through one by one and making a statement, this couldn't happen because the lawyer could only request a take down on 127.0.0.1 after giving some thought to it, denoting either negligence or deliberate misstatement to create such a notice. But because a machine can do it, we get all sorts of crazy stuff that are accidents of an algorithm and that is acceptable under law.
Algorithms don't make accidents. There is a non zero probability of a cosmic ray flipping a bit and corrupting the operation of the machine, but those events are quite rare. In normal operation an automated software system will do exactly what it does, nothing more or less.
Couldn't it be argued that it (take down notice for 127.0.0.1) can -only- be a deliberate misstatement?
WB can not argue that the 'chance' of 127.0.0.1 hosting copyrighted content is anything but non-zero. This means that sending out take down notices regarding 127.0.0.1 are nonsense (i.e. deliberate misstatement).
WB failed to properly certify that they made a best effort at truth: their machines fundamentally are more error prone than they could be, and thus WB didn't spend a reasonable effort on ensuring veracity of their claims.
More specifically, the lawyers whose name is attached claimed that under his best powers, the claims are known to be true. However, he knows the error rate of WB bots is above that human workers would produce parsing the same content. They fail to do an additional check on the machine parsed lists (or they'd remove many of these embarrassing links).
But they did sign, under penalty of perjury, that they did.
That's not how the certification of a DMCA request works.
All they have to certify under penalty of perjury is that they own the copyright to the works they claim have been infringed. They do not have to certify that the works identified are the works they claim to own.
Read that again if it doesn't make sense, the only part that they need to certify is that "I own XYZ", it's up to the parties responding to certify that "I'm not sharing XYZ, I'm sharing my Original Content PQR." Or whatever other affirmative defense they can muster.
The law is built to recognize three parties: 1) accuser, or, party owning copyright to a work; 2) respondent, or, the person accused of violating that copyright; 3) safe-haven, or, let's say YouTube, who facilitates this transaction by responding to accuser's claim with an immediate takedown, to avoid any culpability for respondent's potential infringing action.
Then respondent submits their defense after a period of time elapses, and finally YouTube seeing the defense can optionally restore the service for the accused person until a court order says they were infringing.
The law is designed to make the job of respondent harder than the job of accuser, since they are the one accused they should obviously have to take steps to prove their innocence </s>.
The only thing that accuser has to certify is that they own a copyrighted work.
If YouTube has the desire to take on some extra liability, they can reject obviously incorrect take-down requests, and if they are ever wrong, they get the luxury of potentially losing their safe-haven status and being lumped in with accused party #2 when the lawsuit goes on to the inside of a court room.
If the court decides the take-down request was reasonable and accurate, but YouTube did not take appropriate steps to honor it or respondent lied in the response, one or both of these parties can suffer the penalties (and potentially perjury charges for their bad-faith responses claiming non-infringement.)
> 17.c.3.v A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
While it's not under perjury, WB is lying when they say they have a good faith belief in their notices, and the people damaged by them should sue the person who signed the notice for fraud or tortious interference, since the filing of the bad faith notice improperly interfered with your contracts with the complained to party.
The use of automated systems with no oversight is not a reasonable basis for the formation of a belief, and thus since WB is using that to base their beliefs on, they're not made in good faith -- they're intentionally trying to skirt that requirement because they want to externalize their costs.
I suggests suing the lawyer directly for his part in the conspiracy, since lying in legal notices isn't a (legal) duty he can fulfill for the company, so they're individually liable for their actions.
I agree with you, it's in bad faith to forward notices from a machine that has proven to be unreliable without review, but I don't read that line the same as you did.
> has a good faith belief that use of the material in the manner complained of is not authorized
What doesn't this line say? It doesn't say that the material identified by the request is known in fact to be exactly the thing mentioned here as the "material" the copyright owner has not authorized the use of.
They only have to certify that they own some material and its use in the manner complained of is not authorized. This is a gaping loop-hole and it has been known since the law was penned. If you think my reading of this is obtuse, I don't think we can resolve it here between the two of us, but I did not make up this interpretation.
I suppose my point is merely that I believe there are colorable arguments to bring forth to hold both WB and their lawyers accountable for these antics, if you look at the text of the law. Like many legal arguments that haven't been heavily litigated, the outcome is somewhat uncertain.
For various political reasons, the parties with standing are either too poor or have various incentives to cooperate with WB, and so we don't see how these arguments actually play out in courtrooms -- we just end up with a de facto system that favors big players.
This is frustrating, because people buy in to the argument that the law is the problem, when really, it's the politics of corporations that cause the problems surrounding takedowns, and that's the issue we should be addressing our energy towards. (Were, for instance, Google to have the opposite incentives for some reason, again, it wouldn't matter what the law said, the de facto system would tilt the other way.)
I don't think we actually disagree on that point, and I think I articulated it poorly the first time.
Do they still actively issue these takedown requests, even when faced with the fact that it has zero effect on weather the movie is pirateable ?
I mean, I can download any movie in a couple of minutes from one of the torrent sites that I usually use anonymously.
I do this because it's convenient and because I seldomly watch the movies till the end - many of them are not interesting enough to keep me awake.
I stopped pirating music since Spotify came along - the price is right and the selection is good enough to keep me engaged for several lifetimes.
There is no such thing for movies.
Maybe iTunes, but I'm not willing to pay their price and the selection is far from complete.
So instead of paying lawers and acting like clowns, these guys should invest in a startup which is the Spotify for movies without all the jurisdictional limitations that usually come with such services, because their lawyers are busy fishing pirates on 127.0.0.1...
Besides, these services usually let you watch a movie months after it has been released, wereas you can usually see the movie on torrents the day they're out, often in HD quality.
A service which does the same legally has my $20 every month.
In this case they have effectively asked Google to de-list themselves. I suggest Google (temporally at least) does exactly that for all their properties and sends then a message to the effect that "the entity hosting the pages you asked to be de-listed also listed these <list of millions of entries> and we de-listed those also, please let us know which, if any, of these assets should legitimately be included in our index".
Since these are requests that google take down links from it's index, it is much more probable that someone somewhere has a page where they have a link to localhost with the anchor text matching the title of a movie.
https://news.ycombinator.com/item?id=9931404
TLDR; there is a sharing program which installs web service on localhost:4001 that handles sort of magnet links