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In addition...In addition...Posted Dec 7, 2011 0:14 UTC (Wed) by pr1268 (subscriber, #24648)In reply to: SFLC, EFF seek DMCA exemptions by pr1268 Parent article: SFLC, EFF seek DMCA exemptions
Forgive me for replying to my own comment, but having just now read the article about NMap bundled with malware on C|Net's site, I'm thinking that the DMCA may actually help the NMap authors (my attitude after reading our editor's comment in particular). How ironic.
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In addition... Posted Dec 7, 2011 0:58 UTC (Wed) by josh (subscriber, #17465) [Link]
Yeah, the takedown and safe harbor provisions seem almost sensible, compared to the anti-circumvention provisions. I still think the takedown mechanism should pass through a court system first and require a court order, but the safe harbor provisions seems nearly optimal.
I wonder how much it would improve matters if filing a DMCA notice required putting up a bond against incorrect notices, claimable when a non-infringing work gets taken down by mistake.
The DMCA is a lot better than what might replace it Posted Dec 8, 2011 2:46 UTC (Thu) by JoeBuck (subscriber, #2330) [Link] The DMCA has anti-circumvention provisions (very bad), and it also has provisions to protect site operators from liability if a third party (a commenter, or a blogger buying hosting services from the site operator) violates someone's copyright (pretty good). The copyright owner can't get the site banned from the net, and can't sue for zillions in damages. Instead, there's a procedure called "notice and takedown".The notice and takedown provisions of the DMCA are vastly better than anything that could replace it. The alternative (desired by the "content industry") would be to make a site owner liable for any comment published on the site. Open forums would go away, as one illegal post might result in hundreds of thousands of dollars in liability.
In addition... Posted Dec 8, 2011 5:45 UTC (Thu) by rahvin (subscriber, #16953) [Link]
Personally I think the take-down provisions are very well executed. In fact certain industries think they are far to liberal and are trying to make them about 1000 times worse with SOPA. Consider that the take-down process is a very fair process that has a counter take-down built in that allows the material backup as soon as the counter notice is given. I consider this extremely fair in that if the actual request is bogus or incorrect the poster can counter notice and get the material reposted immediately. This system was setup to facilitate an actual court case in the event the request is challenged by the original poster and it provides complete immunity to the 3rd party hosting the material in question.
There are things that could be fixed in the process, that the original notice doesn't require an assertion under perjury that the material in question is actually the copyrighted material claimed or that there isn't built-in penalty processes in the event someone abuses the process or even an acknowledgment that fair use is a valid consideration and claim for counter damages are problems. But all in all the process is relatively fair, especially in comparison against what is in SOPA. Keep in mind SOPA does away with the safe harbor provisions, eliminates the counter notice and other nasty changes while increasing the limitations of the anti-circumvention sections.
I'm deviating, but personally I think the DMCA take-down notice system is quite fair and reasonable. Not only that but if followed to an actual court case the notices should simplify the litigation and process. There are a few problems with the system (I listed a few above) but it could be far worse.
In addition... Posted Dec 8, 2011 17:08 UTC (Thu) by brunowolff (guest, #71160) [Link]
You don't get your stuff back up immediately after doing a counter notice. You get to wait 10 days. (The service provider might be convinced that your use is fair or that an identification error was made and put it back sooner, but that don't have to and they assume some risk if they do.)
The process should really be slower. The site owner should get some time to respond before their site is blocked and if they counter notice it should not get taken down until there is a court order.
In addition... Posted Dec 8, 2011 17:59 UTC (Thu) by josh (subscriber, #17465) [Link]
I agree entirely with your suggestions. The user or site owner should have the opportunity to file a counter-notice *before* the content goes down, and the process should require a court past that point.
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