Court Recognizes That DMCA Process Goes Against Basic Copyright Concepts
from the about-time... dept
We already wrote about the recent court ruling issuing a temporary restraining order on a furniture company for abusing the DMCA. However, there was a separate part of the ruling that was quite interesting, and deserved separate attention, so I decided to do a separate post on it. Towards the end of the ruling, the court notes that one of the problems with the way eBay deals with the DMCA (i.e., automatically taking down any content that gets a takedown message) flips the basic burden structure of copyright law:Here, the public interest is in fact benefitted by granting a TRO, because absent eBay's policies, designed to avoid eBay's liability for intellectual property infringement, it would be the claimed copyright holder who would bear the burden of proving the copyright infringement.... That burden is essentially shifted under eBay's policy. To withhold a TRO would allow anyone to effectively shut down a competitor's business on eBay simply by filing the notice that the seller's product allegedly infringes on the complaining party's copyright.This is a point that we've made before, in pointing out that the DMCA process flips the standard burden of proof needed for blocking speech, but this is the first time I've seen a court recognize that point and find it troubling. Of course, the court seems to blame eBay's policy, ignoring the fact that eBay's policy is the inevitable result of the DMCA's liability safe harbors. It would be nice to see this ruling cited in the future in challenging the overall DMCA process.
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Look up oxymoron (a paradox). You can jokingly say that Military Intelligence is an oxymoron (because the military isn't intelligent, in your opinion). But you can't say that Military Base is an oxymoron.
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Military Base WOULD be an oxymoron if all the solders were wearing clown shoes and were only armed with animal balloons and buckets of confetti.
Justice Dept. doesn't exactly fit the same format as Military Intelligence or Jumbo Shrimp, but seeing as how often they are the Miscarriage of Justice Dept., their name is indeed an oxymoron.
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The DMCA doesn't require eBay to do anything, thought it does provide an incentive.
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The DMCA doesn't require eBay to do anything, thought it does provide an incentive.
I would argue (er, as I did in the post) that the incentive is, in fact, so great, as to mean that it is, really, the DMCA's problem. Can you name any serious online site that does not follow this policy? While it's technically true that the DMCA does not "require" anyone to act this way, the incentives are so great that everyone does. Saying it's not the DMCA is playing games.
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burden of proof
It is just like the big media companies expecting youtube to know what shouldn't be posted. How is it youtube's responsibility? For instance, if I invented a better mousetrap, and someone started making cheap imitations of it and selling it in Walmart, (Ptueee, the sons of bitches...) should I expect Walmart to decide on my behalf that it may violate my patent, and not carry the imitation merchandise? It ain't gonna happen! How about the guy that owns a parking lot and gets $20 to let someone set up a flea market table? Is it his responsibility to search for and discover every potential copyright or patent infringement?
If I have a patent or a copyright, it is my responsibility to find infringements and prosecute them. No one else is going to do it on my behalf. What right does Time-Warner, Fox, CBS, or anyone else have to expect other people to enforce their property rights? Right now, fear of litigation has forced the venue to police and enforce other people's copyrights. It is a stupid expectation and a stupid twist of the legal system.
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