jgreco at ns
Oct 24, 2009, 11:28 AM
Post #14 of 36
(349 views)
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> On Oct 24, 2009, at 10:53 AM, Richard A Steenbergen wrote:
> > On Sat, Oct 24, 2009 at 09:36:05AM -0400, Patrick W. Gilmore wrote:
> >> On Oct 24, 2009, at 9:28 AM, Jeffrey Lyon wrote:
> >>
> >>> Outside of child pornography there is no content that I would ever
> >>> consider
> >>> censoring without a court order nor would I ever purchase transit
> >>> from a
> >>> company that engages in this type of behavior.
> >>
> >> A DMCA takedown order has the force of law.
> >
> > The DMCA defines a process by which copyright violations can be
> > handled.
> > One of the options in that process is to send a counter-notice to the
> > takedown notice.
>
> Laws frequently have multiple options for compliance. Doesn't mean
> you don't have to follow the law.
A DMCA takedown notice isn't "law," Patrick, and does not have the "force
of law" claimed above. It is merely a claim by a third party as to some
particular infringement. A service provider CAN take certain steps listed
in the DMCA and gain absolute protection under the law against almost any
sort of copyright liability regarding the incident. This does not,
however, make it correct or perhaps even legal for a service provider to
take that action in all cases.
There are plenty of examples of DMCA notices having been sent for the
sole purpose of getting something someone doesn't like shut down, even
where the party issuing the notice obviously does not own the copyright
in question. There are a variety of techniques to deal with this...
> > This seems like a very obvious case of parody/fair use,
>
> Possibly, but I do not blame a provider to not being willing to make
> that distinction.
Yes, but it's troubling that a nontrivial provider of transit would make
such a mistake. This is like Cogent, who, at one point, received a DMCA
(or possibly just abuse complaint) about content being posted through a
server of a client's, and who proceeded to try to null-route that Usenet
news server's address.
Of course, they picked a hostname out of the headers of the message in
question, and null-routed that. To no effect, since the users accessed
servers through SLB. Duh.
And since Usenet is a flood fill system, blocking the injecting host
isn't sufficient anyways, since the article is instantly available at
every other Usenet site, including the other local servers. Double duh.
And since the subscriber's account had already been closed and cancels
had been issued earlier in the day, the content wasn't even on the
server anymore. Three duhs and Cogent's out...
The annoying part was that Cogent decided at 2 *AM* in the morning
that this was a problem, and insisted on an answer within an hour.
I allocated a whole lot more time than that for reading several tiers
of management and sales the riot act. Not that it had any operational
impact whatsoever, but when a service provider starts implementing
arbitrary kneejerk "fixes" upon receipt of a complaint, that's a bad
thing, and that seems like what may have happened here, too.
To be clear: I agree that a provider might not want to make a
distinction between a legitimate DMCA takedown and something that's
not, but it is reasonable to limit oneself to the things required by
the DMCA. Null-routing a virtual web server's IP and interfering
with the operation of other services is probably overreaching, at
least as a first step.
> > so the proper
> > response would be for the victim to send a counter-notice and then
> > wait
> > for the complainer to settle the issue in court.
>
> See previous comment. The website owner, however, has that option.
>
> Let's just agree that there were multiple avenues open to lots of
> people here, that HE should not have taken down more than the site in
> question (if, in fact, that is what happened), and that the DCMA has
> silly parts.
>
> Doesn't mean you should "wait for a court order" though.
That is, of course, completely correct.
... JG
--
Joe Greco - sol.net Network Services - Milwaukee, WI - http://www.sol.net
"We call it the 'one bite at the apple' rule. Give me one chance [and] then I
won't contact you again." - Direct Marketing Ass'n position on e-mail spam(CNN)
With 24 million small businesses in the US alone, that's way too many apples.
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