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Are DMCA Abuses a Temporary or Permanent Problem? 163

Posted by CmdrTaco
from the still-on-the-books dept.
Regular Slashdot contributor Bennett Haselton wrote in with a story about the DMCA. He starts "On January 16, a man named Guntram Graef who invoked the Digital Millennium Copyright Act to ask YouTube to remove a video of giant penises attacking his wife's avatar/character in the virtual community "Second Life", retracted the claim and stated that he now believes the video was not a copyright violation. (He had sent similar notices to BoingBoing and the Sydney Morning Herald just for posting screen shots of the video.) His statements in a C-Net interview suggest that he didn't mean to alienate the anti-censorship community and was probably angry over what he saw as a sexually explicit attack on his wife. But the event sparked renewed debate over the DMCA and what constitutes abuse of it. I sympathize with Graef and I admire him for admitting an error, but I still think the incident shows why the DMCA is a bad law." Hit that link below to read the rest of his story.

The DMCA is known mainly for its two most controversial provisions: the ban on technology to circumvent copyright restrictions, and the procedures by which ISPs must respond to "take down" notices if a third party claims that one of the ISP's users is violating their copyright. The first of these, I am opposed to in principle; the second, I am not opposed to in principle but I think is too easy to abuse in practice -- because I think incidents like the Graef case and my own limited court experience in related areas has suggested that the protections against DMCA-type abuses are very weak.

First, I'm against the anti-circumvention provision in principle because I agree with the position espoused by the EFF that computer code is protected under the First Amendment, even if some uses of that computer code may be illegal. After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was protected speech! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection. Just because X is illegal does not mean that tools or instructions for doing X should also be illegal.

With regard to the second provision, I'm not against requiring ISPs to take down infringing material on receipt of a notice from the copyright holder. But in practice there are two avenues for abuse here: (a) the party sending the take down notice can make statements that are not technically false, but which have the effect of persuading the ISP to take the material down, or (b) the party sending the take down notice can simply lie -- because the truth is that in too many cases, false statements made "under penalty of perjury" are not prosecuted, or even noticed, by the courts.

The EFF has already done a good job documenting abuses under the DMCA, and I'm not going to repeat all of that here. My argument is that these are not just temporary problems with a relatively new law, but rather that the abuses are the result of realities that won't change any time soon: ISPs being too busy to look closely at every complaint, and courts being too busy to go after everyone who violates court rules to get what they want. And thus it does no good to say that the DMCA would be fine if only enforcement actually got done properly instead of the ham-handed way it's been carried out so far, because that's not going to happen.

As I said, I think that if you have a bona fide case against a party, there's nothing wrong with taking action against them that would otherwise be considered a violation of their privacy and other rights. I've never sent a DMCA take down notice myself, but I've been involved in court cases in which I asked the judge to sign an order requiring a third party to turn over information about someone that was pertinent to the case. I don't consider that an abuse of the system, if the information you're after is relevant.

I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me... Later, in what will not come as a huge spoiler to my fellow male Seattle residents, she apparently decided that, being a non-overweight, non-single-Mom, non-sexually-repressed girl in a city full of rich single guys, she was under no obligation to pay me back, and said, "Go ahead and sue me". Anyone who knows about my sideline taking spammers to court would tell you, it is not a terrifically smart move to say to me, "Go ahead and sue me". So, since I was going to be at the courthouse for an upcoming case against a spammer, I figured, why not, and filled out a Small Claims form with the defendant's address listed as "to be determined", since all I had was her cell phone number. Then I asked the judge to sign an order asking T-Mobile to give me the rest of her information so I could serve the papers on her. The judge signed it, I mailed it off to T-Mobile, and three weeks later T-Mobile sent me a letter containing her address, where I had the papers served. Most people don't know it's possible to do this just in a case where someone owes you $100 and all you have is a phone number, but that's just because a lawyer would never bother with such a small case, and most non-lawyers don't know the option exists -- and of course, it also depends on the judge, who may or may not sign the order.

(In that vein, people always ask me, is that sort of thing really worth the time? In this case, since I was going to be at the courthouse anyway, the extra time to write the motion, get it signed, and mail it off, was less than 30 minutes. But I was mainly curious about whether or not it could be done, and how much privacy protection there really is under the law, and knowing that was worth more to me than the $100 anyway.)

So I don't think it's unethical to request such information if you have a genuine case against a party. But while I don't think that what I did constitutes abuse of the system, I think it clearly shows how the system could be abused. Nobody checked my ID when I filed the case or asked the judge to sign the subpoena; I could have been anybody, and I could have disappeared once I had the information. (I had T-Mobile mail it to my address, but I could have just as easily had them mail it to the court, and then gone down and asked to look at the court file.) DMCA opponents should be aware that even without the DMCA, privacy protections are not as great as most people probably think they are.

As a result, I'm especially nervous about laws that enable abuse based on copyright assertions, because almost all of the legal threats we've ever received at Peacefire were based on what I considered to be bogus "copyright" claims. In 1997 we published a program that you could run on any computer with CYBERsitter blocking software installed, and it would decrypt the file that stored CYBERsitter's "secret" blocked-site list, and print it out in plain text. The CEO of CYBERsitter claimed that we were "violating every intellectual property law ever written" and sent threatening notices to our ISP demanding that they remove the program. I argued that every byte of the decryption program was our original work, so it didn't violate their copyright. In fact, it didn't even enable violations of their copyright, because it didn't make it any easier for someone to distribute illegal copies of their program, and I also said the decryption program served a worthwhile purpose by allowing customers or potential customers to see what the program really blocked. (Although to me, the enabling issue and the "worthwhile purpose" issue were secondary to the primary point, that original works of computer code should be protected by the First Amendment.) Fortunately our ISP stood their ground, but if the DMCA had existed back then, CYBERsitter could have invoked it, and possibly the extra pressure might have caused our ISP to back down. (Blocked-site-decryption programs were originally exempt from the DMCA as a result of the decision of the Copyright Office, but that exemption was revoked in 2006 because nobody had written a new decryption program in three years.)

So that was an example of how a company could intimidate an ISP into taking down material, without technically lying about the situation, but tacking on the words "copyright violation" and hoping the ISP would capitulate. What about cases where the sender of a DMCA take down notice just lies?

The Dutch activist group Bits Of Freedom conducted an experiment in 2004, in which they signed up with 10 different ISPs and posted a copy of a work that was clearly labeled with a notice that the author had died 100 years ago and the copyright had expired. Then they sent fake "complaints" to all 10 ISPs from an anonymous Hotmail address. 7 of the 10 ISPs removed the content immediately, and one even replied to give the personal details of the account holder, without being asked to do so. So completely fictitious complaints do apparently work. The DMCA does more protection than that because it requires the complainer to make a copyright claim "under penalty of perjury". But how much assurance does that really provide?

No one has yet tried to get our site shut down with a copyright claim or other accusation that was simply made up out of whole cloth. But my experiences in other areas have left me without much confidence in statements that are made "under penalty of perjury". The times I've been to court against spammers, I usually get to watch a few other Small Claims cases being tried. Probably at least once every time that I've been there, it's come to light that some party in a case said something that they almost certainly knew was not true, and I've never seen a judge do anything about it -- and court employees who have been there much longer have said they've never seen it happen either. (Judges are far more likely to get upset about people speaking out of turn. It's OK to lie, as long as you do it while the judge isn't talking!) It's true that Small Claims court is for resolving small matters, but lying under oath in Small Claims court is still a felony, punishable at least in theory by up to 10 years in jail. (And in any case, lawyers have told me that even in higher-level courtrooms, most false statements don't get anyone in big trouble. High-profile cases like Martha Stewart are the exception.) I don't think that everyone who lies under oath should go to the big house for 10 years. But I have no faith in the DMCA just because it requires accusatory statements to be made "under penalty of perjury", when judges usually let false statements under oath go completely unnoticed.

I doubt that a lawyer would risk their career and even their freedom to make up a completely fraudulent DMCA claim against us, such as claiming a page on our site was a ripoff of something originally produced by their client. But I don't think it's out of the realm if possibility that a lawyer would claim that, for example, a parody of one of their logos that appeared on our site, was a "copyright violation" -- even though the company would almost certainly be advised by their lawyer that such parodies are protected speech, which means their statement would constitute perjury, but it would probably never be punished.

The low point of my own confidence in the enforcement of anti-perjury laws, came when I sued a spammer who appeared in court and claimed that he had absolutely no knowledge of the spam being sent, and had never accepted any orders for spamming of any kind, while the judge, who appeared to hate anti-spam cases even more than most judges did, kept haranguing me for suing a clearly "innocent" person. I then played a recording of a conversation that I had with the spammer over the phone, pretending to be an interested customer (with a disclaimer played at the beginning of the call saying that it could be recorded, in order to make the taping legal), in which he said, among other things:

"I mean, we have all their information to back up any email we send them. If we have their ISP information, we can prove that they've given it out, because you can't get someone's ISP unless they've given it to somebody." [sic -- he meant "get someone's e-mail address", although the statement is still wrong]

"Do you already have your creatives and everything? So I've just got to upload what you have and just blast it out?" [note: "creatives" are copies of ads that sent out for you by advertisers and spammers]

"It's a United-States-based company but they pump everything through China and then it comes back to the United States."

The judge appeared very flustered at that point and started accusing me of "entrapment" (which was backwards -- I'd never heard of the spammer until he spammed me first, and then I called him afterwards, just to get evidence that he was in the spamming business in case he showed up in court and denied it). Since she claimed it was entrapment, I still lost and the spammer walked out home-free, without the judge ever even commenting on the questionable veracity of the statements he had made at the beginning. And that is all the protection that exists in the real world against people making false statements "under penalty of perjury".

The point is that when reading the wording of a proposed law, there's a temptation to think that the scenario described is exactly how the law will play out when it's enforced (see the "Alice, Bob and Charlie" scenario in the Wikipedia entry on the relevant section of the DMCA), and that anyone who deviates from the rules will be punished. But my narrow experience in court, in an area unrelated to the DMCA, taught me some things that several lawyers, with sad smiles, have confirmed to be true throughout the law: (a) judges will do what they want; (b) even if judges do sincerely want to follow the law, they're unlikely to agree on what it says; and (c) courts don't have the will or the time to chase down every person who violates the rules.

Don't judge a law by what it says will happen. Judge it by how it will play out if more than half of the steps in the process get screwed up. Guntram Graef apparently wasn't even trying to do anything dishonest when he got a video removed from YouTube on the basis of copyright claims that turned out not to be valid. Imagine how much abuse is possible when you're gaming the system on purpose.

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Are DMCA Abuses a Temporary or Permanent Problem?

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  • by otacon (445694) on Wednesday January 24, 2007 @11:27AM (#17737856)
    That would be like me getting pissed and taking legal action because I was in someone's counter-strike highlight video getting 'pwned'
    • Or like getting flamed on USENET. It hardly deserves a thermonuclear response.
    • I don't think that is a good comparison. It seems to me that the people who made the video knew it was a female player - would they have made it if they didn't explicitly know that? If the description is correct, it could easily be viewed as sexist both ways (aside, too many people forget discrimination works both ways).

      Secondly, if you play Counter-Strike, you know there's a fair chance of getting 'pwned'. There's not a fair chance of someone making a sexually explicit video that has no relevance to t
      • by Tony Hoyle (11698)
        Floating animated penises are 'sexually explicit'? Huh?

        They're about as 'explicit' as a carry-on film. You'd have to be really sheltered to be remotely shocked.

      • From what I read, Anshe Chung is a public figure in Second Life. She is the biggest land baron in that world (not counting Linden Labs itself), and she was holding a news conference when that horrific dirty attack happened...
      • by makomk (752139)
        I don't think that is a good comparison. It seems to me that the people who made the video knew it was a female player - would they have made it if they didn't explicitly know that? If the description is correct, it could easily be viewed as sexist both ways (aside, too many people forget discrimination works both ways).

        I think you underestimate the willingness of Second Life griefers to attack people with giant floating dicks. It seems to be fairly standard (along with particle spamming and various oth
  • I'm just waiting until it gets overturned by a judge. I would go to court until the end if somebody invokes it against me.
    • We're all waiting (Score:4, Interesting)

      by Mateo_LeFou (859634) on Wednesday January 24, 2007 @11:37AM (#17738026) Homepage
      I remember Eben Moglen at a panel called "The DMCA and You" confidently asserting that the circumvention clause would be stuck down soon because it so obviously did not fit in with a free society.
      audio, partial transcript [compsoc.com]
      • Re: (Score:3, Insightful)

        by Hatta (162192)
        I remember Eben Moglen at a panel called "The DMCA and You" confidently asserting that the circumvention clause would be stuck down soon because it so obviously did not fit in with a free society.

        Holy cow, is he that naive? Drug prohibition obviously does not fit in with a free society either, and we've been stuck with it for decades. It's at the point where anyone who honestly assesses the world around them has to admit we don't live in a free society.
        • Well, if you listen (it's at the end) it's anything but naive. He predicts the vote would be 5-4 (without naming names) and that they would "hate" doing it but would have to.

          I also thought I'd ask: he says this will occur "either in Correly, ... or something else". I wonder if anyone hear knows what case Correly (sp?) is and what happened?
    • by Anonymous Coward
      Yes, we all should fight for the right to be beaten up by a giant penis.
  • because my real life doesn't have enough scams or giant penises after my female counterpart.
  • Put back... (Score:4, Informative)

    by PatHMV (701344) <post@patrickmartin.com> on Wednesday January 24, 2007 @11:34AM (#17737976) Homepage
    You seem to be overlooking the put back provisions of the DMCA. The guy who posted the video of the penises attacking the wife's avatar could have just certified to YouTube that the material was non-infringing, and then YouTube under the DMCA would have left the video up (barring any TOS violations), leaving the 2 parties to fight it out amongst themselves in court... with the video remaining up until ordered removed by a court. I am wholeheartedly opposed to the anti-circumvention provisions of the DMCA, but the take-down notice system it created seems to me to strike just the right balance.
    • Except that doing that is the legal equivalent of walking up to a dragon, dropping your pants, and pissing at it. You give a giant dragon (hungry lawyers) the right/ability to come after you.

      Not to mention that generally the people making the DMCA takedown request have a lot more power/time/money available.
      • by pete6677 (681676)
        Well, it is your choice. Standing up for freedom of speech isn't always easy or convenient. If the law is on your side and you have the means to fight, go for it.
    • by ChaosDiscord (4913) * on Wednesday January 24, 2007 @01:37PM (#17739896) Homepage Journal
      The guy who posted the video of the penises attacking the wife's avatar could have just certified to YouTube that the material was non-infringing, and then YouTube under the DMCA would have left the video up...

      Incorrect.

      Check section 512 yourself [loc.gov]. (Direct link to section 512 that might work [loc.gov].)

      There are two key parts: c.1.A.iii: The service provider "upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;". The legal content must be taken down "expeditiously." No window of opportunity is allowed in which to contact the person who posted it. Then g.2.B and C: "upon receipt of a counter notification described in paragraph [the service provider] ... replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice."

      Anyone willing to tell a lie can silence your online speech for ten days.

      There is no trial, not even a judge's review. Even if your ISP wanted to, they can't put the content up faster than than ten day (at least, not without losing the safe harbor provisions). That's assuming you promptly file the counter notification. You can bring charges that the third party lied, but it's hard to prove when they claim "Oops, I guess we were wrong." Ten days might not seem like much, but it might get a company past an initial news rush. A number of companies have used the ten day window to illegally silence leaks of sale prices on "Black Friday" until the day had passed. [wikipedia.org]

      The take down notice system is, at its core, a good idea. I've even filed take down requests. However, it is not a good balance. It amounts to suppression of speech. If you're going to supress speech, you need a much higher standard than some random person's claims. The reason you can be silenced for 10 days is to give the original claimant time to file an infringement suit against you. Why does the claimant get such a window, but the person whose speech is being suppressed doesn't? A more fair balance would be that upon receipt of notification, a sevice provider needs to make a reasonable effort to contact the poster. If the poster fails to provide counter-notice within ten days, then the content gets yanked.

      • "Anyone willing to tell a lie can silence your online speech for ten days."

        Not quite. Anyone willing to tell a lie which "substantially complies with the DMCA 512(c)(3)(A) clauses (ii), (iii), & (iv)" can silence your speech for ten days. You can't just claim that so-and-so wrote something you didn't like and the ISP will automatically remove your words as infringing-- the person making the claim has to identify a copyrighted work that your speech infringes upon, and the material in question has to be
  • by EveryNickIsTaken (1054794) on Wednesday January 24, 2007 @11:37AM (#17738012)
    I'd have to envy the judge overseeing this case.. "Yes, your honor. They made a video of giant penises bludgeoning a digital representation of my wife." Now THAT is what I want to watch on CourtTV.
    • Re: (Score:1, Funny)

      by Anonymous Coward
      Does this story also mean we will see a "giant cock" tag available for future stories?

      Maybe /. can also create a related icon that can be used for all those mindless Dvorak rant articles as well?
  • YouTube DMCA Abuse (Score:5, Interesting)

    by Kiaser Wilhelm II (902309) <slashpanada@gmail.com> on Wednesday January 24, 2007 @11:38AM (#17738030) Journal
    I have several videos on YouTube that are short clips ( 15 seconds) edited in such a way to be a parody and satire of the original work. YouTube keeps taking them down because they said they got a DMCA letter from the content producer.

    I've read the law and consulted copyright professionals - everything is in my favor for having fair use rights to make these videos. These guys who are sending out DMCA notices are just being bullies because they know they can shut out little guys without much fear of a counter-DMCA lawsuit for making false claims.

    I literally had to put a warning on all my videos to tell these people exactly what the LAW states and that I will use my rights under 512(f) to obtain civil remedies against anyone who makes false claims. So far, my material has been up for several months since without being pulled. Coincidence?
    • Re: (Score:2, Informative)

      by maxume (22995)
      What you are talking about is certainly DMCA abuse, but note that unless they have made some promise to you that says otherwise, YouTube has no obligation to do anything in your defense.

      The terms of service pretty much say it isn't their fault if viewing their site blows up your computer, so I doubt they promised to defend your works.
      • I know they don't. YouTube could just as well say "No" without a reason.

        The point is that YouTube is being served with sworn DMCA violation notices from content owners that they are legally obliged to follow.

        If you read my post more carefully, you would see that I was talking about how the content producers are being bullies with the DMCA notices knowing that the "little guy" is not likely to file a lawsuit to claim damages under 17 USC 512(f). YouTube is just doing what they are required to do. My warning
  • link to the video (Score:5, Informative)

    by 1u3hr (530656) on Wednesday January 24, 2007 @11:42AM (#17738084)
    How can you not provide a link to the actual video in question [google.com]? I wasted 5 minutes digging this up....
  • by PingSpike (947548) on Wednesday January 24, 2007 @11:46AM (#17738136)
    ...is did the submitter get his $100 back from that woman?
    • And will he ever have another date? The pissed-off graffiti about him probably takes up all four walls of the ladies' room now.
      • Psssh. In my experience, females who don't abuse their relationships with men are as bitter about women who do as men are.

        It's like when you see a really cool girl, and she's dating a guy who's cheating on her, and when they break up she does something that makes him look like a dickhead...Does that make you want to date her less, or more? She's within her rights to get some of her own back, same as this guy is within his rights to sue the girl who walked off with his hundred bucks.

        And generally, while putt
        • Given the one-sidedness of the submitter's version of the story, and given the fact he invited her to this dinner, I wouldn't be so quick as to assume she really was as unfair as he appears to be implying.

          If I invited someone to a dinner, then unless I specifically stated at the time of the invitation that I was expecting her to pay her way, I certainly wouldn't demand repayment of my expenses at a later date. That's the way it works, and this sounds more like a socially inept geek doing what socially in

    • by sconeu (64226)
      Did she agree in advance to buy her own ticket? Otherwise, if I invite someone to anything that requires a ticket, since I did the inviting, I expect to pay, unless otherwise previously agreed to.

      • Re: (Score:3, Informative)

        by Jtheletter (686279)
        Well, she didn't need to agree in advance of showing up, if at the time she had said she would pay him back then she's entered a verbal contract to do so. IANAL, but I doubt it gets much more straightforward than that (other than an actual written contract).
        • Well, she didn't need to agree in advance of showing up, if at the time she had said she would pay him back then she's entered a verbal contract to do so. IANAL, but I doubt it gets much more straightforward than that (other than an actual written contract).

          Did she actually say she'd pay him back, or did he just say I'll lend you the money, without clarifying that means she'll pay him back by Monday or he'll sue? If she's expecting him to pay for it, then he needed to explicitly say that when he says "bor

          • Well, we're sort of arguing a moot point since until/unless Haselton clarifies his conversation with this girl we'll never actually know. However from the way he worded the story it sounds as though there was at least tacit understanding that the woman would pay him back and she decided to try and go the "but I'm a girl" route to get out of it - I'm sure you've witnessed that kind of behavior before with certain girls/women, usually the pretty and spoiled ones. Additionally it was a charity luncheon, so it
  • Man i wish this would have gone to court, it would have quality entertainment. I know it's inaccurate, but from the headline i get a mental image of a man indignantly arguing in front of a judge that they had copyrighted the act of attacking their wife with penises, and it's just too funny to me.
  • by StressGuy (472374) on Wednesday January 24, 2007 @11:50AM (#17738194)
    Good for Graef that he realized he was using the wrong tool to fight against what was happening to his wife. However, let's not forget that he has a right to be upset. I wonder if the people who made this video will also show they can be mature and take it down willingly? Somehow, I doubt it.

    Believe it or not, there is such a thing as taking a joke too far. There's "edgy" and then there's hackneyed and juvenille. The subject of this video stikes me as high school level male "group think".
    • by Bieeanda (961632) on Wednesday January 24, 2007 @12:22PM (#17738676)
      I think it's less that he realized that he was using the wrong tool, and more that he was surprised that people called him on it. Anshe Chung Co/LLC/KFC/KMFDM/WTF is too used to working within the confines of Second Life, where the admins are more than willing to keep them happy. The outside world... much less so.

      I don't really sympathise with him at all, on any level. Anshe Chung is not his wife. Anshe Chung does not resemble his wife in the slightest. The 'phlying phalanx of phalluses' attack was roughly the equivalent of an eight year old drawing a pointy-hatted stick-figure, labeling it 'Teechur' and adding lightning bolts flying toward it-- only in this case, it's Mrs. Graef drawing the caricature herself. His overreaction was on par with that same teacher seeking the young critic's expulsion because the drawing noted previously was a 'death threat'.

      The attack was juvenile, certainly, but flying off the handle and trying to smother it was the worst thing that he could have possibly done.

      • by prelelat (201821)
        The attack was juvenile, certainly, but flying off the handle and trying to smother it was the worst thing that he could have possibly done.


        He could have shot him in the "phalluses" that would have been worse.
      • The attack was juvenile, certainly, but flying off the handle and trying to smother it was the worst thing that he could have possibly done.

        I would agree. If the husband didn't bring up the DMCA charges, I bet no one here would have ever heard about this story. Thanks to the husbands antics, he caused the opposite effect of what he was going after, largely increasing the viewership of said video. I almost feel bad for his wife...almost.
    • by geekoid (135745)
      BY your definition, there is a demographic that finds this funny.

      Of course he will be upset, most people would. Just because someone is upset is no reason to feel like it needs to be taken down.

  • DCMA (Score:5, Insightful)

    by shirizaki (994008) on Wednesday January 24, 2007 @11:50AM (#17738196)
    It was a nice piece of paper pushed by the MPAA and RIAA during the 90s when people were really uneducated and saw that people were "sharing music without paying the artists." the courts could stop file sharing software because the people judgign and serving in jury's didn't have any knowledge on it, it was something that their kids did.

    Now everyone knows that isn't the case anymore. People are more educated than back then, and they know of the RIAAs dirty deeds (uploading fake files, suing 10 year olds, using the same file sharing programs to find people) and they know what a Napster, torrent, itunes, and a Shareaza is. The DMCA stands, now, as a loose piece of paper with no sway either way and only serves to hamper the courts with lawsuits and injunctions that have swayed in the favor of the file sharing applications.

    This article does state YouTube, but going through the DCMA, especially since it's been pretty much the losing tool of copyright holders, is almost useless if you have copyrighted content you didn't authorize posted on a website. I hope the guy mentioned relaized that just because you pick an icon in a virtual world doesn't mean you own it. It's up to the peoepl that own and operate second life to make the call.

    I think we're entering a world where you can't pass off half-baked and ill conceived properties and expect to make hand over fist gobs of cash because you control every outlet of that property. The world is too small and too fast: release a CD, and the individual files are ready to be shared on the old P2P networks, the whole album is being ripped and uploaded to people across the world (albeit not instantly like some RIAA people would want you to think), and someone just bought it and ripped it to their iPod.

    But I'm getting off topic. DMCA is a nostalgic piece of law that should be revoked in favor of newer wordings that either exclude actaul programs that could be used for piracy, or it needs to go afetr the individuals that misuses these programs. But in orde rto do that, the issue of "fair use" needs to be defined for music, video, and words. As long as the fiar use is determined by the studios and labels and is controleld based on their whims they can't expect to get fair treatment in the courts. Either have fair use defined and procecute people based on that, or don't define fair use and confuse peoepl on whether they actually own what they bought.
    • by antdude (79039)
      Your reply title says DCMA. Defense Contract Management Agency? :)
    • by debest (471937)

      DMCA is a nostalgic piece of law that should be revoked in favor of newer wordings that either exclude actaul programs that could be used for piracy

      Are you under the impression that the inclusion of programs that could be used for piracy was not entirely intentional? The DMCA's stated purpose is to fight piracy, but its true purpose is control. I don't think (failing the fall of the current American system of government) that the DMCA will ever be revoked.

  • This is going to be a permanent problem as long as this law is on the books. Here in the US we dont repeal bad laws. We keep passing more thinking it will work this time. Anyway with all the stupid laws we have on the books, just try not to piss anyone off, police, lawyers, the rich, and prosecutors especially, and you'll be ok.
  • "Are RICO Abuses a Temporary or Permanent Problem?"

    If you can answer that one, you have your DMCA answer
  • If you sue all your dates afterwards. What, didn't she put out?
  • by oshkrozz (1051896) on Wednesday January 24, 2007 @11:59AM (#17738310)
    Unless you are in law enforcement the Judge can't say what you did is entrapment even if it was. A private citizen is allowed to both obtain information illegally that will help a case or entrap another party to build their case. I think the judge might have tossed the case because you are not a lawyer, judges do that too.
  • Absolutely, yes (Score:4, Informative)

    by Weaselmancer (533834) on Wednesday January 24, 2007 @12:03PM (#17738378)

    The legal machinery in this country will always expand upon any new law to the point of lunacy.

    Currently the DCMA is being used as a way to stifle competition [slashdot.org] rather than its original intent of keeping content "safe", as well as other abuses. It's not different than how the Patriot Act is being used to bust drug dealers [nwsource.com] rather than combat terrorism.

    As soon as the law sees a new tool, it will use it to the maximum. When you give them a hammer and tell them it's to pound nails, don't be surprised when they use it as a door opener.

    For a really spooky read, do some Google work for forfeiture abuses. Here's a good place to start. [fear.org]

    • by antdude (79039)
      DCMA = Defense Contract Management Agency. :)
    • That Patriot Act story happened in 2005. The Patriot Act has been revised since then, and its scope has been narrowed.
      Is the "sneak & peek" method of tapping tunnels to be used by terrorists and/or drug dealers still legal, or were those methods outlawed again when the act was renewed and rewritten?
      I will add that I've seen at least one public service announcement claim that drugs fund terrorists. I'm sure that anyone fighting drug smugglers with Patriot Act provisions will tell you that as well.
  • by v1 (525388) on Wednesday January 24, 2007 @12:12PM (#17738518) Homepage Journal
    is that this is not a "good law". Good laws are carefully worded and carefully considered, so that even if you are trying to bend their meaning and abuse them, you cannot, because they are wored in such a way that they cannot possibly incriminate someome that does not break the spirit the law was written in.

    Nowadays however, very few new laws are what I would call "good". They are wored loosely and are open to wide interpretation. The justification is usually that they don't want to create a loophole where a criminal could get away, and that surely no good law enforcement officer would abuse this power.

    But we all know, if there is an opportunity for abuse, it will happen. Not some of the time, not most of the time, but each and every time. It's not a risk, it's a promise.

    Good Laws are written such that a few guilty go free so that there is no risk that the innocent suffer. The DMCA is not a Good Law, it chooses to error on the side of incrimination.
  • Sadly, abuse of the system _is_ a part of the legal system, though no one official will admit that. As long as there are no real penalties for bringing bogus DMCA claims and no real penalties for ISPs to honor them, the abuse will continue because the claimants will get what they want. Unfortunately all laws have this feature, you can claim/sue for whatever you want. Until a court rules on the issue, it's generally all fair game. And there are plenty of lawyers, and others, who will take advantage of this l
  • Well I for one am glad that the DMCA is about circumvention, not circumcision !
  • I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money.

    A little basic etiquette here -- you invite her, you pay. Her "forgotten her checkbook" was just a polite way of saying "Hell, no, you cheapskate dork."

    I suppose that when you live in a world of "a vide

  • Permanent (Score:3, Insightful)

    by russotto (537200) on Wednesday January 24, 2007 @12:56PM (#17739198) Journal
    The law was intended to be abused, and the powerful groups behind it (many of whose names end in "AA") like it that way. The way it works is

    1) Anyone can get anything they want taken down by invoking copyright
    2) If you're fool enough to counter-notify, it's literally an invitation to be sued.
    3) Even if you counter-notify, if they claim they're going to sue, they get to take it down again. Indefinitely. Even if they never actually sue. There's no real recourse here.
    4) If they do sue, the takedown remains in place for the duration of the suit.

    So the DMCA allows a private party to get the effect of both a temporary and a permanent restraining order without the formalities of actually making a prima facie case (let alone proving it). And because "copyright" is involved and because the DMCA doesn't actually require the information to be taken down but merely provides a major incentive (immunity from suit) to those who obey it, the First Amendment is bypassed.

    The law should be found unconstitutional on its face, but the courts have pretty clearly indicated that they aren't going to do so.
  • So let's see. So many issues...

    First off, let's address this little snippet...

    "Just because X is illegal does not mean that tools or instructions for doing X should also be illegal."

    So it should be completely legal to provide information on how to make a silencer for a handgun? What legal use is there for a silencer? It should be completely legal for me to be able to tell you that if you screw a woodscrew into the lead core of a Slugger shotgun shell, you now have an Armor Piercing Round that will go thr
    • by mobby_6kl (668092)
      OMFG, where are you from, Soviet Russia? I hate to do this point-by-point, but there's just "so many issues..."

      So it should be completely legal to provide information on how to make a silencer for a handgun?

      Yes, why not. And isn't it legal anyway?

      What legal use is there for a silencer?

      Oh I don't know, using it at the range to judge the effects it has on projectile characteristics? Not going deaf while doing that without ear protection?

      It should be completely legal for me to be able to tell you that if you

  • Maybe I'm missing something... but I seriously doubt if Vanessa Carlton and/or her publishing company, etc. gave their permission to use "A Thousand Miles" in a video of giant pink penises attacking some woman. Isn't that a copyright violation? (I can't see how that could possibly constitute "fair use.")

    Also -- was that an actual picture of the woman in question, altered to show her holding a giant penis? Surely there has to be grounds for some sort of legal action there? While I agree that using the DMCA w
  • When Anshe Chung started SL, she was a in-game prostitute (ala Escort). I still have one of her early (well 2 years ago), note cards that listed all her prices [slashdot.org].

    Not only this, she was also an escort in the AC and SWG (where such things were against the ToS). I guess with a little of money people try to pretend their past does not exist. Interesting, her Wikipedia entry [wikipedia.org] had massive edits that tried to erase her working girl years (from her).
  • I wonder, with the perpetual "almost-there" view of avatar-in-the-'net as a proxy for one's likeness, when we are going to see the first glut of backlash. What I am specifically talking about here is this: if you take a picture of a person and then use that for commercial gain, I believe you have to have a release. If, however, you take a picture of a person that is in-frame with you on the street as a family snapshot, no such release is required. Now, what happens when you take an image of an avatar th

  • I've written some physics textbooks, which are free online under a copyleft license (CC-BY-SA). The copyright and licensing information are on p. 3 of the PDF file. A year or two ago, some guy downloaded the PDFs, deleted p. 3 from each one, and started selling CDs with my books on them on e-bay, saying in his e-bay listing that they were public domain. (For those of you who aren't up on your legal terminology, "public domain" means that the work is not copyrighted, which was false in this case.) The ironic

  • It abuses natural and artificial rights that have been excercised for centuries. It gives creators absolute legal control over work they've publicly release3d. It isn't being abused. It's made to legitimise abuse.

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