Brazil Decides Against DMCA-Style Notice-And-Takedown For Third Party Content

from the good-news dept

Mon, May 10th 2010 11:47pm — Mike Masnick

We've had numerous stories concerning Brazilian service providers, such as Google, being held liable for messages created by third parties. Brazil, apparently, had no concept of a safe harbor for third party liability. However, that's apparently on the verge of changing -- and it might even be changing in a smart way. While an earlier proposal would have required service providers to take down pretty much any content under a notice-and-takedown system, similar to what the US has for copyright in the DMCA, complaints about the possible impact this would have on free speech appear to have been listened to. The latest proposal moves away from a notice-and-takedown regime to one where service providers would only need to take down content under a court order. In other words, people just complaining by themselves, with no judicial oversight, cannot force a site to take content offline:

An Internet service provider shall only be held responsible for damages resulting from content created by a third party if, after receiving a related court order, it does not take measures to render unavailable (within the scope of its services and within the timeframe specified) the content identified as infringing.

That seems significantly more reasonable than traditional notice-and-takedown schemes that are widely abused. It would be nice if the US could move to a similar thing for copyrights as well to avoid the serious First Amendment problems with a notice-and-takedown system.

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Filed Under: brazil, takedowns

19 Comments

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Tom Landry (profile), 11 May 2010 @ 1:39am

on the flip-side wouldn't that jam up the courts something awful?
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Black Patriot (profile), 11 May 2010 @ 1:44am

Re:
Not if you fined people for filing cases which are obviously fair use, if the fine was large enough then that would make quite a few people think twice before trying to get something taken down.
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Anonymous Coward, 11 May 2010 @ 1:56am

Re:
I'll take clogging up the courts over stifling free speech any day.
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PaulT (profile), 11 May 2010 @ 3:29am

Re:
Not necessarily. Now, instead of firing off an easy letter that a service provider has to blindly accept even if they have no case (under penalty of perjury, but this is rarely enforced), the copyright holder actually has to have a case against the accused.

Since this often doesn't exist under the current system, there would be a far lower number of accusations and thus not significantly high numbers of cases for the courts to handle. It would also allow penalties to be enforced for repeat and volume offenders, who eventually make it to court anyway under today's system.
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Sebastian, 11 May 2010 @ 4:06am

There is some very interesting discussion on this blog post at CPJ, which provides further explanation of certain issues related to the earlier and new version of this proposal - see the comments section too: http://cpj.org/blog/2010/04/is-brazil-the-censorship-capital-of-the-internet.php
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Anonymous Coward, 11 May 2010 @ 5:59am

in the end the court backed system is worse than a dmca system, both for the isps and the content owners. it means that every battle is a court battle. an isp that hosts a torrent site, example, could find itself going broke sending its lawyers to court 4 or 5 times a day to handle what should be a strictly administrative task. rights holders would have to pay to file and to attend court as well. only the freeloaders benefiting from the stolen content get off at the same price, free. there is something wrong with that when the law makes it more expensive to be a victim or a third party to a crime.
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Mike Masnick (profile), 11 May 2010 @ 6:19am

Re:
there is something wrong with that when the law makes it more expensive to be a victim or a third party to a crime.

Wait, you're really going to try to argue that due process is a bad system?
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Anonymous Coward, 11 May 2010 @ 6:54am

Re: Re:
due process is never a bad thing. however, that due process shouldnt happen in a manner that causes harm to rights holders and gives violators a long term free pass. it takes seconds to violate copyright and keep violating it, and it can take a very long time to even get a court date to hear such a case. all dmca does is set things back to the way they were before the violation, and the rights can be settled in court without violating anyones rights or prejudicing their position. the court process should not go on with the violation continuing.
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Robert, 11 May 2010 @ 7:02am

The way I understand it, this rule only states that online service providers will not be liable for third party content unless they ignore a court order.

Some people seem to be misunderstanding the fact that online service providers can still remove content if they want to - It is not like they cannot act on their own and have to wait for a court order. If the content violates their terms of service, for example, they can just take it down, court order or not.

This seems to be a great system indeed. Here's hoping it ends up becoming law.
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ChrisB, 11 May 2010 @ 8:10am

Re: Re: Re:
What? How? With the proposed system all Rights Holders have to do is show [i]real[/i] infringement and the content is gone. Unlike here in the US where no legal proof is necessary, and only a letter is needed to stifle potential free speech, putting the burden (both in costs and time) to fight false DMCA notices on innocent citizens making [i]legal[/i] content.

In both systems if the content is illegal then it will be taken down.

Question to you: If a rights holder doesn't like (but the content is legal) a work, why is the burden on the new creator? Shouldn't the rights holder have to prove that a work is infringing before it is removed?
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Hephaestus (profile), 11 May 2010 @ 8:15am

Re:
"rights holders would have to pay to file and to attend court as well."

Perhaps that would make them keep track of what their employees are posting. Think the YouTube Viacom case.

"only the freeloaders benefiting from the stolen content get off at the same price, free."

"Infringing" content not "stolen"

"there is something wrong with that when the law makes it more expensive to be a victim or a third party to a crime."

Yeah about that, think the words "Due Process" which everyone in the media creation and distribution industries want to not apply to music, or video. There is a small problem with that, once due process is removed for one thing it can be removed for others. That is a really big issue, warrantless wire taps, monitoring everything sent over the internet, take down notices, border confiscation based on suspicion, proving that you downloaded files legally.

Removing Due Process creates a system that is ripe for abuse. Where anyone can cause problems for someone else just by accusing them of doing something. Where free speech is trampled on. Where any dissenting voice can be silenced. Sounds like you are on your way to creating a really wonderful society.

Be careful though it might just comeback and bite you on the ass.
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Anonymous Coward, 11 May 2010 @ 9:18am

Re: Re: Re:
"Waahhhh, justice is too much work." - TAM
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Anonymous Coward, 11 May 2010 @ 11:43am

Re: Re: Re:
The future will not be kind to the control freaks.
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Luiz, 11 May 2010 @ 12:11pm

Re: Re: Re:
The thing is here in Brazil a lawsuit is really cheap if compared to one in the US. Furthermore a media company will not really need to prove that a content is infringing for it to be pulled offline, but rather provide sufficient evidence of such. Then the court shall issue a preliminary takedown order. The ISP shall then pull the content off, but in order to this takedown to be secured, the media company shall prove during the civil procedure that the content is really infringing. If it is not, the company may as well be sued by the content creator.

Also note that the procedure is only prelimninarily against the ISP ("ação cautelar preparatória" = something like a preliminary lawsuit) and the real suit and procedure are against the content creator. And, once again, in Brazil these procedures are cheaper than in US.
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Luiz, 11 May 2010 @ 12:13pm

Re: Re:
*...but rather provide reasonable evidence that it may be infringing.
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jjmsan (profile), 11 May 2010 @ 12:58pm

Re: Re: Re:
If due process is never a bad thing then the rest of your paragraph is pointless. What you are really saying is that due process is never a bad thing as long as it is my due process.
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Luiz, 11 May 2010 @ 1:01pm

Re:
"If the content violates their terms of service, for example, they can just take it down, court order or not".

Exactly.
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I know stuff...., 11 May 2010 @ 3:19pm

In brazil, where this regulation is being proposed, it's a lot cheaper to access the courts. This regulation makes more sense there than in the US.

see http://blog.ericgoldman.org/archives/2010/05/proposed_intern.htm

"American readers should also bear in mind that, contrary to the situation in the United States, in Brazil it is neither too complicated nor too expensive (at least in comparison to American standards) to file a lawsuit demanding content to be taken down. In fact, under certain circumstances, such lawsuit can even be filed directly by the alleged victim in a small claims court at little to no cost."
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sprearson81 (profile), 9 Jun 2012 @ 6:30am

It certainly does make more sense than in the US
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