But What If A Takedown Notice Isn't Actually A DMCA Takedown?

from the legal-gymnastics dept

Fri, Aug 22nd 2008 2:48pm — Mike Masnick

We already covered the judge's ruling about how copyright holders need to consider fair use before sending a DMCA takedown notice, but there's another part of Universal's position in this case that has been widely ignored (even by the judge in the case), but which Ethan Ackerman wisely calls attention to: Universal claims that the takedown letter doesn't violate the DMCA because it wasn't actually a DMCA takedown. Instead, they said it was just a friendly "request."

This may seem like a silly assertion or, at best, a minor side point, but it could become quite important. The DMCA has some very specific conditions that those sending takedowns need to meet -- but there's nothing really stopping anyone from sending a request that isn't specifically a DMCA takedown notice. For copyright holders, this would remove some of the power of the takedown notice, as it wouldn't require the service provider to react, like a DMCA notice does. However, if rulings like this one stand, adding some amount of liability to copyright holders sending DMCA takedown notices, some may actually find it safer to send non-DMCA takedowns on the assumption (probably correct) that most service providers will treat them exactly the same as a DMCA takedown. In other words, would copyright holders "opt-out" of the DMCA terms in order to avoid that liability? It will be worth watching.

Of course, in this case, the court just assumed that even if it didn't hit all the criteria, it was for all intents and purposes a DMCA takedown letter. But that won't always be the situation in future cases -- especially if copyright holders become even more explicit that the letters aren't DMCA takedowns, but some other type of takedown request. And, of course, this could expand as well -- where a total non-copyright holder could send such "requests" for takedowns, and they conceivably might not be violating the DMCA's provision against false takedowns, because they won't even fall under the DMCA. One way or the other, you can bet lawyers are going to be busy.

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Filed Under: dmca, takedown
Companies: universal music

15 Comments

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Jake, 22 Aug 2008 @ 3:49pm

On The Other Hand...
I can't see much to complain about if Universal et al really are switching tactics from bluster and intimidation to asking nicely.
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Jim B., 22 Aug 2008 @ 3:54pm

Would put liability on the ISP
Ultimately it would be a trick upon the ISP to cause them to censure the content, and ultimately would it not put a legal bent in their immunity? Think about it. If they don't verify each request and they begin to take down content via a request (not made of the DCMA) they would become legally liable. Sort of like the telecoms being liable if they begin to interfere with the public (they are immune because they don't get involved at all unless subpoenaed.

I believe you would have a slew of individuals asking to see the DMCA notices, and once it was determined that they really weren't DMCA requests they'd sue the ISP (if the ISP honored them without examining them for proper DMCA procedure or if they knew them to be non-DMCA requests). I would. I'd suggest the ISP take the time to seriously consider what they are honoring when receiving a request.
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Anonymous Coward, 22 Aug 2008 @ 4:28pm

"...may actually find it safer to send non-DMCA takedowns on the assumption (probably correct) that most service providers will treat them exactly the same..."

Looks like rather a huge assumption to make, and why woud you make an assumption like that ?

"...the court just assumed that even if it didn't hit all the criteria, it was for all intents and purposes ..."
and how do you arrive at that conclusion ?

I hope this isn't just a "story" because of the smug feeling you get when assuming you understand better than the average person.
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- ChurchHatesTucker (profile), 22 Aug 2008 @ 4:35pm
  
  Re:
  "Looks like rather a huge assumption to make, and why woud you make an assumption like that ?"
  
  Because that's exactly the way that organizations like youtube have behaved in the past with these issues.
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  - Anonymous Coward, 22 Aug 2008 @ 4:44pm
    
    Re: Re:
    In the past they were proper DMCA take downs, and now you assume the reaction wil be the same for a mere request !!!.
    Where is your evidence or logic to support such a huge assumption ?
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    - Anonymous Coward, 22 Aug 2008 @ 5:28pm
      
      Re: Re: Re:
      Dude, you are DUMB. The nice designation would be "naive" but you're being too bull-headed to be "naive." This qualifies as willful ignorance.
      
      Since you will not do the research yourself before making flippant counter-claims:
      
      http://www.eff.org/files/filenode/lenz_v_universal/Lenz2ndAmendedComplaintExhibit s.pdf
      
      CLICK IT.
      
      Flat out SAYS its not a DMCA takedown notice. And this isn't the first time this has happend. Viacom sent over 100k false DMCA takedown notices (as in not properly detailed, and about non infringing content such as this guy's home video: http://www.afterdawn.com/news/archive/11118.cfm) to YouTube before.
      
      People are abusing this shit for easy money. Its disgustingly immoral. Its just one more piece of evidence that the legal system in America is totally hosed because Corporations have more influence than the People.
      
      And no, I'm hot a dirty hippie. Hippies have been spouting that stuff for years, its not my fault they were actually right about something.
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    - Mike (profile), 22 Aug 2008 @ 5:55pm
      
      Re: Re: Re:
      In the past they were proper DMCA take downs, and now you assume the reaction wil be the same for a mere request !!!.
      
      Did you miss the part where they were NOT proper DMCA takedowns?
      
      Where is your evidence or logic to support such a huge assumption ?
      
      The fact that these were NOT proper DMCA takedowns and we saw exactly how YouTube reacted.
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- Mike (profile), 22 Aug 2008 @ 4:40pm
  
  Re:
  Looks like rather a huge assumption to make, and why woud you make an assumption like that ?
  
  Because that's exactly how most companies already treat takedown notices. In fact, that's exactly what YouTube did in this case. It has a process for dealing with "takedowns" that doesn't take into account whether it's a DMCA takedown or another type of takedown.
  
  and how do you arrive at that conclusion ?
  
  Um. Because the judge said so?
  
  I hope this isn't just a "story" because of the smug feeling you get when assuming you understand better than the average person.
  
  What is there to feel smug about? I don't think I understand this any better than the average person. This is an important legal issue that wasn't getting much coverage, so I thought it was worth mentioning.
  
  I'm sorry that you feel differently.
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  - Anonymous Coward, 23 Aug 2008 @ 6:19am
    
    Re: Re:
    The judge didn't just assume this was a DMCA take down; judges don't make casual assumptions like that. The court treated it as a DMCA take down because that's what it was.
    
    YouTube apparently weren't fooled either.
    
    But techdirt seems to have been fooled, perhaps because unlike the participants in the case techdirt are not obliged to engage brain before blogging - is it easier to achieve the smug feeling that way ?.
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    - Anonymous Coward, 23 Aug 2008 @ 8:55am
      
      Re: Re: Re:
      But techdirt seems to have been fooled, perhaps because unlike the participants in the case techdirt are not obliged to engage brain before blogging - is it easier to achieve the smug feeling that way ?.
      Hey genius, try reading the title of this article: "But What If A Takedown Notice Isn't Actually A DMCA Takedown?". Notice the "...What If..." part? At least learn the difference between a question and a claim.
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P. Orin Zack, 22 Aug 2008 @ 10:33pm

Bullying 101
It looks to me like they're taking a page from the bully playbook. The first stage is to actually rough up a few targets. This demonstrates the events that you want others to internalize. The next stage is to make threats. If your setup has borne fruit, the other targets with replay the consequences that they imagine might follow, and willingly do what you want without you having to lift a finger. Stage three is to leave a stooge in place to make empty threats to keep the behavior pattern going.
---
I write pointed political and business short stories at http://klurgsheld.wordpress.com
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Anonymous Coward, 23 Aug 2008 @ 7:26pm

What if the sky craves in? Isn't this the same sort of logic as 'what about the children'?
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Anonymous Coward, 23 Aug 2008 @ 7:26pm

What if the sky craves in? Isn't this the same sort of logic as 'what about the children'?
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- Anonymous Coward, 25 Aug 2008 @ 12:17am
  
  Re:
  What if the sky craves in? Isn't this the same sort of logic as 'what about the children'?
  We heard you the first time. We're just ignoring you.
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Ferin, 25 Aug 2008 @ 5:09am

Bad idea
This is just another attempt to weasel out of the law while still enjoying it's benefits. They'll try to create a class of non DMCA takedown requests, that won't oblige them to be held repsonsible in court when they screw up, and then turn around and sue ISPs that don't respond by taking things down. I.E. "Hey we told you this was our stuff and you didn't take it down when we asked nicely. ISPs really are repsonsible for file sharing!"
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