I really don't think this is a good idea. If they don't respond to the cease and desist, get the court and law enforcement to enforce the C&D. Don't pretend that due process of law doesn't exist.
Some of your claims are pretty flakey, it's obvious they set out to replicate what you do but judging by those screenshots most of what they did is just similar - I hope your takedown notice exclusively specified the direct infringement.
Since Amazon is hosting the content, they could be held liable for ALL cases of copyright infringement on their servers. In order to avoid this, the DMCA has a provision that, if you respond to takedown requests, you get "safe harbor" and your customer, who actually did the infringing using your service is now liable. That basically means that Amazon can't appeal the takedown request. They must take down the content before appealing, or they expose themselves to tons of liability. I don't think this system of scaring hosting sites into being content owners' personal executioners is a good idea. Specifically, there is no judicial oversight, no evidence required, no actual law enforcement agencies involved, etc.
That's why DMCA takedown notices must be filed with an assertion, under penalty of perjury, that the request is legit (requestor is authorized to issue it, it is an infringement, etc).
Not perfect, but it does make a pretty big disincentive to being caught issuing fraudulent takedown notices.
Doesn't the evidence that fraudulent takedown notices are still issued, even in bulk and via automated systems clearly indicate this isn't a significant enough disincentive?
> Not perfect, but it does make a pretty big disincentive to being caught issuing fraudulent takedown notices.
In theory, perhaps, but in practice I can find many false notices. The EFF even keeps a "Wall of Shame" with the worst notices: https://www.eff.org/takedowns
A tiny number have gone to court, but even then, damages are rare. Diebold is the only company I can find that has paid significant damages for false claims. While several courts have made rulings of bad faith, I was unable to find even one perjury conviction over a false DMCA notice.
Actually, the DMCA doesn't say that. Many people have been misled because some of the popular "copy and paste" form letters for sending the notices include a different statement than is actually required.
Here's the actual text of the DMCA (HR 2281) [1]:
> A statement that the information in the notification is accurate, and under penalty of perjury, that
the complaining party is authorized to act on behalf of
the owner of an exclusive right that is allegedly infringed
You are only swearing, under penalty of perjury, that you're the owner of the copyright or authorized to act on behalf of an owner of the copyright. You are not swearing that you believe an infringement has occurred, or to anything else in your notice.
Thus even if you know the other party is not infringing your copyright, you are not committing perjury by attesting that they are infringing to a service provider. I don't know if there are other consequences of false takedown notices, but the swear under penalty of perjury doesn't actually exist.
> (f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
> (1) that material or activity is infringing, or
> (2) that material or activity was removed or disabled by mistake or misidentification,
> shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
To me, the real LOL part of this was the image sprite...Sutton didn't even bother to change the name of the file! Just shows that they were totally thumbing their nose at Estately and the law.
This is a terrible title, and "I was thankful for one benefit of DMCA" is not the same as "I love DMCA."
I hope they don't really believe the DMCA is a wonderful thing just because it was beneficial to them in this one instance. I realize they pointed out that it has some horrible parts, but I get the feeling they don't feel that any reform is necessary.
Copyright reform is only becoming more necessary as time goes on.
To clarify: the linked post is bout the DMCA safe harbor rules about takedown notices. This really isn't the bad part of the law. It can be argued that the takedowns are too easy to do and that they are honored too quickly by site administrators, that they are susceptible to automation and false positives, etc... But really that's not a huge deal.
Where the DMCA is widely reviled is in its other parts, most particularly the anti-circumvention provisions that, when the law was drafted, made things like security research or reflashing a consumer device criminal acts (c.f. the Skylarov case). It should be noted that this nonsense, while it's still in the law, has been significantly dilluted by a bunch of regulatory exemptions enacted by the executive branch.
I was wrong, by the way: it turns out that it's the librarian of congress and not the executive branch that has the power to do this regulation. That's probably more stable and less likely to be walked back, which is good.
My read is that a simple backup is not exempted though. You need to be breaking the CSS encryption for the purpose of making a fair use distribution. Obviously IANAL, you should read the law, yada yada yada.
Oh, oops. I think my (months) younger self must have misunderstood due to wording.
>Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.
>Motion pictures on DVDs that are lawfully made and acquired and that are protected...
I must have drawn my conclusion hastily. I think I also read it expecting to find that it was legal, since I've seen comments on HN, in the past, claiming it to be. Thanks a lot (not sarcasm).
Although this one was a success story, it has largely been ineffective in stopping copyright violation in many other scenarios. Youtube, the biggest video platform on the net, still continues to host thousands of copyrighted videos, many owned by people who are notoriously aggressive about enforcing their copyright. I don't think the takedown scales really well. It's basically you vs. the internet and you are going to lose :)
How is it a good thing in general that you got an infringing site taken down based on your word without it going through some sort of public oversight before removal?
This kind of thing makes the US horribly dangerous to internet businesses and now that you have done it to a much bigger shark than yourself, they will be gunning for you.
Imagine it the other way around, perhaps on something much more innocuous that is easy to miss. Would you rather a court case to decide an appropriate action against you, or your site ripped off the net, requiring you to then go to court to get it reinstated?
The speed that was so helpful to you as a startup in this instance is what will leave you dead in the water if you mess up, even accidentally, in the future (I am not suggesting that what was done to you was accidental, although many of their management may not have understood the details).
> your site ripped off the net, requiring you to then go to court to get it reinstated
Getting your site reinstated is as easy as the other person having it taken down: a one-page counter-notice sent to the same contact at the service provider attesting that you are not infringing the other person's copyright.
For the service provider to have "safe harbor" from liability, they must also put your content back up just as quickly as they took it down. Now the other party has to actually take you to court to take your content down again.
Sorry, I did think you needed more faffing to get the stuff back up.
Point still stands though, there should be at the very least an accountable, transparent public third party (ideally a legal court) that deals with both parties involved, before content that isn't explicitly criminal is removed.
Though, if it's significant enough, you can recover. If the copyright holder misrepresented their claims, they are liable for the damages that resulted from the improper removal of the content. Those damages would include your lost customers.
38 comments
[ 5.9 ms ] story [ 87.0 ms ] threadYou can't copy code and tweak some stuff and call it your own.
Not perfect, but it does make a pretty big disincentive to being caught issuing fraudulent takedown notices.
For example, according to <http://www.techdirt.com/articles/20090315/2033134126.shtml&#..., Google has stated that 37% of the takedown requests they receive are fraudulent.
edit: Why does Hacker News not support <scheme://path> (with brackets) syntax? It's nothing new.
In theory, perhaps, but in practice I can find many false notices. The EFF even keeps a "Wall of Shame" with the worst notices: https://www.eff.org/takedowns
A tiny number have gone to court, but even then, damages are rare. Diebold is the only company I can find that has paid significant damages for false claims. While several courts have made rulings of bad faith, I was unable to find even one perjury conviction over a false DMCA notice.
Here's the actual text of the DMCA (HR 2281) [1]:
> A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
You are only swearing, under penalty of perjury, that you're the owner of the copyright or authorized to act on behalf of an owner of the copyright. You are not swearing that you believe an infringement has occurred, or to anything else in your notice.
Thus even if you know the other party is not infringing your copyright, you are not committing perjury by attesting that they are infringing to a service provider. I don't know if there are other consequences of false takedown notices, but the swear under penalty of perjury doesn't actually exist.
1: http://www.copyright.gov/legislation/hr2281.pdf
> (f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
> (1) that material or activity is infringing, or
> (2) that material or activity was removed or disabled by mistake or misidentification,
> shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
To me, the real LOL part of this was the image sprite...Sutton didn't even bother to change the name of the file! Just shows that they were totally thumbing their nose at Estately and the law.
Here's the screenshot of that: http://blog.estately.com/assets/Estately-images-on-Sutton_s-....
This is a terrible title, and "I was thankful for one benefit of DMCA" is not the same as "I love DMCA."
I hope they don't really believe the DMCA is a wonderful thing just because it was beneficial to them in this one instance. I realize they pointed out that it has some horrible parts, but I get the feeling they don't feel that any reform is necessary.
Copyright reform is only becoming more necessary as time goes on.
Where the DMCA is widely reviled is in its other parts, most particularly the anti-circumvention provisions that, when the law was drafted, made things like security research or reflashing a consumer device criminal acts (c.f. the Skylarov case). It should be noted that this nonsense, while it's still in the law, has been significantly dilluted by a bunch of regulatory exemptions enacted by the executive branch.
http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Ac...
I was wrong, by the way: it turns out that it's the librarian of congress and not the executive branch that has the power to do this regulation. That's probably more stable and less likely to be walked back, which is good.
My read is that a simple backup is not exempted though. You need to be breaking the CSS encryption for the purpose of making a fair use distribution. Obviously IANAL, you should read the law, yada yada yada.
>Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.
>Motion pictures on DVDs that are lawfully made and acquired and that are protected...
I must have drawn my conclusion hastily. I think I also read it expecting to find that it was legal, since I've seen comments on HN, in the past, claiming it to be. Thanks a lot (not sarcasm).
Although this one was a success story, it has largely been ineffective in stopping copyright violation in many other scenarios. Youtube, the biggest video platform on the net, still continues to host thousands of copyrighted videos, many owned by people who are notoriously aggressive about enforcing their copyright. I don't think the takedown scales really well. It's basically you vs. the internet and you are going to lose :)
This kind of thing makes the US horribly dangerous to internet businesses and now that you have done it to a much bigger shark than yourself, they will be gunning for you.
Imagine it the other way around, perhaps on something much more innocuous that is easy to miss. Would you rather a court case to decide an appropriate action against you, or your site ripped off the net, requiring you to then go to court to get it reinstated?
The speed that was so helpful to you as a startup in this instance is what will leave you dead in the water if you mess up, even accidentally, in the future (I am not suggesting that what was done to you was accidental, although many of their management may not have understood the details).
Like reading Kafka. This guy will be crying about the dmca when they use it to remove things such as listings from his site.
Also, the company is in Canada, i was ignorant of this reach. Til
I think you might be right on the parallel here, we'll see over time if it plays out into an irony filled bureaucratic tragedy for them.
[edit] I think of the DMCA as being something of an area weapon, and startups usually have a much smaller surface area than everybody else.
Getting your site reinstated is as easy as the other person having it taken down: a one-page counter-notice sent to the same contact at the service provider attesting that you are not infringing the other person's copyright.
For the service provider to have "safe harbor" from liability, they must also put your content back up just as quickly as they took it down. Now the other party has to actually take you to court to take your content down again.
Point still stands though, there should be at the very least an accountable, transparent public third party (ideally a legal court) that deals with both parties involved, before content that isn't explicitly criminal is removed.
We must not forget that the most vocal anti-SOPA/PIPA evangelists are passive consumers who just want stuff(tm) for free and don't care for much else.