Freedom for IP » DMCA

DMCA Used to Silence Film Critic

Brian Rowe — Tue, 27 Jan 2009 16:27:25 +0000

Public knowledge has a short piece up on how the DMCA has been abused:

While it’s no secret that the DMCA has had a noticeable chilling effect on a number of different classes of innovators during the last decade, it’s still disheartening to hear of creative uses of content that have been squelched by big copyright holders. Earlier this month, on the film blog The House Next Door, film critic Matt Zoller Seitz wrote of fellow House Next Door contributor Kevin B. Lee’s recent tussle with YouTube. Lee had been posting video essays on YouTube that offered critical assessments of Hollywood films, both recent and classic. As part of his essays, Lee often included clips, of varying length, from the films that he discussed. Over the years, Lee had occasionally received DMCA takedown notices via YouTube and not knowing any better, had chosen not to contest them. On January 12th, however, he received his third and final notice and in accordance with YouTube’s “three strikes” policy, his account was locked and all 140 of his video essays were made instantly unavailable.

XKCD: Steal this Comic /fight_DRM

Brian Rowe — Mon, 13 Oct 2008 19:01:57 +0000

Another amazing comic by xkcd:

I spent more time trying to get an audible.com audio book playing than it took to listen to the book. I have lost every other piece of DRM-locked music I have paid for.

I fully agree with this comic. Fighting with DRM is a nightmare. I gave up on itunes for this very reason and I am unlikely to go back until the remove all DRM and starts using public licenses.

Note: James Grimmelmann has a good point legal point xkcd Understates the Case for Piracy

Garden-variety downloading opens you up to civil liability, but it doesn’t make you a criminal. You’re only a criminal if you (a) infringe for profit, (b) infringe more than $1,000 worth over a 6-month period, or (c) put a pre-release copy online.

The same is basically true of the DMCA (chillingeffects.org):

Question: What are the penalties for violating the DMCA’s anti-circumvention provisions?

Answer: The DMCA allows for both civil remedies and criminal penalties for violations under the anti-circumvention provisions. If the violations are determined to be willful and for commercial purposes or private financial gain, the court can order significant fines and/or imprisonment.

This work (the xkcd comic) is licensed under a Creative Commons Attribution-NonCommercial 2.5 License.

Panel discussion with professionals from NPOs and the legal profession to help answer your questions and provide access to best practices around User Generated Content. This session will include 3 short presentations and lots of time for Q&A. Samples best practices and hands on resources will also be provided.

Our volunteer web guru, Sarah, has also submitted a technical panel on Drupal:

Start to Finish Drupal Redesign

This will be a detailed technical case study of the ACLU of Washington website redesign using Drupal and Convio.

How To Use the DMCA Safe Harbor: IO Group v. Veoh

Brian Rowe — Thu, 28 Aug 2008 18:08:57 +0000

Here are some Best Practices for using the DMCA Safe Harbor to protect your Web 2.0 site from a crippling infringement lawsuit:

1. Establish Terms of Use and Acceptable Use policies, which are posted on its website, and mention copyright policies and DMCA takedown procedures in these documents
2. Remind users of your policies during the upload process
3. Designate a Copyright Agent to receive notification of claimed violations
4. Provides information about how and where to send notices of claimed infringement
5. Warn users who violate the policy
6. Ban user accounts for repeated violations
7. Do Not let user register for accounts from email accounts you ahve already banned
8. Require users to create accounts to upload content (Brian: I have mixed views on this best practice. A site like Wikileaks where privacy is at issue may not want to do this. User for Veoh were NOT required to provide their real name.)
9. Finger print (hash) content so that duplicates can be removed automatically and future identical versions can be prevented from being posted
10. Respond to takedown notices quickly
11. Finally keep records of the number of takedowns and terminations of accounts to prove you are following your own takedown procedures.

Note: these best practices are from a cursory reading of the opinion please contact me (Brian at freedomforip dot ORG) if you have other ideas or thoughts. I strongly recommend consulting counsel when crafting your own takedown response, qualifying for the safe harbor provisions of the DMCA is extremely important for many websites.

These best practices are take from IO Grop v. Veoh I strongly recommend reading the whole opinion. Here are EFF’s thoughts on the opinion:

This ruling provides valuable guidance to companies that host video, audio, and text files on behalf of users (see, e.g., Muxtape). Too many “Web 2.0″ start-ups are careless about the requirements of the DMCA safe harbors. They don’t register a Copyright Agent, or keep good records of their responses to takedown notices, or have a demonstrable policy of terminating “repeat infringers.” Sure, doing this “compliance” work costs time and money. But, as the Veoh decision demonstrates, the payoff can be enormous, since copyright is almost certainly the biggest liability risk these sites face.

Final note: This opinion does NOT address fair use with regards to DMCA takedowns. Best practices should be customized to take creative reuse and political speech into account. I am not aware of a working model that currently does this.

Read the full opinion IO Group v. Veoh

EFF wins another: Fair Use 1, DMCA abuse 0

Brian Rowe — Thu, 21 Aug 2008 17:24:41 +0000

This is a huge win for free speech, many current DMCA request are automated drift netting that capture political and education fair use in the process. A judge ruled in Lenz v. Universal, the “dancing baby” case, that content owners MUST consider fair use before sending takedown notices under the Digital Millennium Copyright Act (“DMCA”). Reviewing DMCA take downs by hand and taking free speech into account is the least we can ask for.

Universal Music Corporation (“Universal”) had sent a takedown notice targeting a 29-second home movie of a toddler dancing in a kitchen to a Prince song, “Let’s Go Crazy.” The use of the song was obviously a fair use and, therefore, non-infringing, Lenz responded by suing Universal for misrepresentation under the DMCA. Universal tried to dismiss the case, claiming that it had no obligation to consider whether Lenz’s use was fair before sending its notice. The judge disagreed:

[A] fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “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,” the owner must evaluate whether the material makes fair use of the copyright.

The court stated that consideration of fair use is necessary to ensure that content owners do not abuse the takedowns:

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.”

Links:
Judge Rules That Content Owners Must Consider Fair Use Before Sending Takedowns – EFF

Post remixed from EFF’s post

False DMCA Claim Censors Protest

Brian Rowe — Tue, 12 Aug 2008 18:42:14 +0000

The International Olympic Committee (IOC) filed an automated copyright takedown yesterday with YouTube for hosting video of a Free Tibet protest at the Chinese Consulate in Manhattan Thursday night.

This is one of the worst ways that the DMCA and copyright can be used. Automatic procedures that allow for free speech to be censored cause irreparable harm. The video is clearly criticism as it depicts Tibetan monks being arrested and a parody of the Olympic logo being used as handcuffs. YouTube automatically pulled the video in response to the takedown claim. I hope YouTube or the video producer sues the IOC for abuse of the takedown procedure.

The video has been posted to Vimeo and is up at this point:

NYC Chinese Consulate Projection Action 08.07.08 from Students for a Free Tibet on Vimeo.

Oregon is claiming copyright on the law

Brian Rowe — Wed, 16 Apr 2008 10:17:52 +0000

Oregon does not want people to copy or distribute the law!? Do they not want people to actually find or read the law or even make the law accessible to people with disabilities?

Oregon, represented by legislative council Dexter A. Johnson, has sent out DMCA takedown requests to free services that provide copies of the Oregon Revised Statutes online.

Oregon is claiming that they have made the code avalible through their own website and have the right to sell the law to other for distribution.

There are several problems with this:

The Oregon state website is terrible. The site does not meet the core basic requirements of the HTML standards, it has no meta data, poor search features and weak display options.
The Oregon website is not accessible to people with disabilities. It fails to meet Section 508 accessibility requirements.
There is a strong fair use argument for anyone that republished the law adding to the public welfare, especially if they are not charging for access.
The law is not copyrightable:

“No one can obtain the exclusive right to publish the laws of a state in a book prepared by him. This general proposition cannot be doubted. And it may also be said that any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual”
Howell v. Miller, 91 F. 129 (1898)

I hope that Oregon sees the error in their ways and starts helping people that are working to make the law usable and accessible instead of wasting time on frivolous copyright claims that only harm the people. Copyright was created to encourage people to create new works, not to hide the the law from the people.