more on copyright takedown experiment

[David Farber <dave () farber net>]

Begin forwarded message:

From: Christian Ahlert 
<christian.ahlert () internet-institute oxford ac uk>
Date: October 20, 2004 11:19:38 AM EDT
To: dave () farber net
Cc: Ip <ip () v2 listbox com>
Subject: Re: [IP] more on copyright takedown experiment

Hi dave:

If people on this list would actually care to read the Dutch paper they 
would see that it was an European experiment, focussing on European 
ISPs. Hence the DMCA does NOT apply. And under European law the 
"penalty of perjury" provision does not exist!

We actually did this research earlier at Oxford - we used JS Mill "On 
Liberty", which is clearly public domain, posted it in the US and EU. 
In the US we discontinued the experiment after two email exchanges with 
the ISP.
http://pcmlp.socleg.ox.ac.uk/liberty.pdf
http://www.spiked-online.com/Articles/0000000CA553.htm

In the US, and that is correct, we would have needed to lie under 
penalty of perjury, as spelled out in the DMCA; but we could establish 
that the US ISP only follows the procedure in a standardized format and 
does not look at the content.

If he would have done it, he would actually have been able to clearly 
see that there is no problem as JS Mill is clearly public domain.

However, even under US law there is potential for abuse. Diebold 
(infamous voting maschine maker) just lost a case because they had send 
C&D letters claiming wrongly copyright infringement to silence 
critique.
http://www.eff.org/news/archives/2004_10.php#002009

This means in the US there is at least a procedure - notice and put 
back; some safeguards etc... this does make it a good law, but still 
better than in the EU. The legal situation in the EU is even worse!

In the EU there is no such thing as a procedure, all the burden is on 
the ISP. The burden to authenticate the identity of the complainee, but 
no burden to actually judge if the content is illegal (much wider 
concept than just copyright).


We could highlight/show that ISPs do not have an incentive to care in 
the EU at all. However, this does not mean it is the ISPs fault. Its 
the result of a very bad law. Think about it for a moment: do you want 
to privatize censorship and place this burden on an ISP, who is running 
a business?

And this is the point: just because it is difficult to police content 
on the Internet, this is no excuse to hand the power to censor over to 
private companies, without any serious safeguards!

best
--Ch


In message <F480DF6A-227D-11D9-AA75-000393D166C6 () farber net> 
dave () farber net writes:
> Begin forwarded message:
>
> From: Suresh Ramasubramanian <suresh () hserus net>
> Date: October 19, 2004 9:45:07 PM EDT
> To: dave () farber net
> Cc: psaffo () iftf org
> Subject: Re: [IP] more on copyright takedown experiment
>
> David Farber wrote:
> > Gosh, I find this heartening as it points the way to an interesting
> > solution that might perfectly invert ISP response.  If ISPs were
> > suddenly deluged by bogus claims of infringement and started taking
> > down
>
> There is of course one little wrinkle to that situation -
>
> http://www.ncsu.edu/copyright/DMCA.html
>
> There are a few criteria specified there on what makes a proper DMCA
> takedown notification. [quoted below this email]
>
> Bogus notifications such as the one that was discussed in the original
> IP article (it showed up on slashdot a few days back) would be in
> violation of at least some of these criteria, especially where
> declarations are made under penalty of perjury.
>
> You called for IP monkeywrenchers, where you really should have called
> for IP civil disobedience activists.
>
> What you are suggesting is somewhat similar to what Gandhi and Dr.King
> suggested, deliberate violation of a bad law, but just as in those
> cases, whoever does this lays himself open to all sorts of nasty legal
> consequences that result from perjury.
>
>         srs
>
> > ‘‘(3)ELEMENTS OF NOTIFICATION.—
> > ‘‘(A) To be effective under this subsection, a notification of claimed
> > infringement must be a written communication provided to the
> > designated agent of a service provider that includes substantially the
> > following:
> > ‘‘(i) A physical or electronic signature of a person authorized to act
> > on behalf of the owner of an exclusive right that is allegedly
> > infringed.
> > ‘‘(ii) Identification of the copyrighted work claimed to have been
> > infringed, or, if multiple copyrighted works at a single online site
> > are covered by a single notification, a representative list of such
> > works at that site.
> > ‘‘(iii) Identification of the material that is claimed to be
> > infringing or to be the subject of infringing activity and that is to
> > be removed or access to which is to be disabled, and information
> > reasonably sufficient to permit the service provider to locate the
> > material.
> > ‘‘(iv) Information reasonably sufficient to permit the service
> > provider to contact the complaining party, such as an address,
> > telephone number, and, if avail-able, an electronic mail address at
> > which the complaining party may be contacted.
> > ‘‘(v) A statement that the complaining party has 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.
> > ‘‘(vi) 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 in-fringed.
>
>
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