Court Recognizes That DMCA Process Goes Against Basic Copyright Concepts

from the about-time... dept

Fri, Nov 12th 2010 2:10pm — Mike Masnick

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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Filed Under: copyright, dmca

15 Comments

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Anonymous Coward, 12 Nov 2010 @ 3:15pm

Isn't it illegal to pursue a false DMCA claim? Why hasn't the Justice Department gone after- oh.
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Anonymous Coward, 12 Nov 2010 @ 4:03pm

Re:
Justice department is an oxymoron.
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The Groove Tiger (profile), 12 Nov 2010 @ 4:22pm

Re: Re:
Er, not it isn't.

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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Anonymous Coward, 12 Nov 2010 @ 10:33pm

It's not really "the DMCA process" that flips the burden, but eBay's policy.

The DMCA doesn't require eBay to do anything, thought it does provide an incentive.
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Mike Masnick (profile), 12 Nov 2010 @ 11:52pm

Re:
It's not really "the DMCA process" that flips the burden, but eBay's policy.

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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jay, 13 Nov 2010 @ 8:29am

I have had a YouTube video get taken down as a copyright violation just because some1 found it offensive. The video was perfectly legal and within Google's guidelines. People can use the perverted DMCA to get their competitors' videos taken down!
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MikeLinPA (profile), 13 Nov 2010 @ 8:35am

burden of proof
I have been saying something like this for a long time.

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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MikeLinPA (profile), 13 Nov 2010 @ 8:44am

Re: Re: Re: oxymoron
I get your point, I really do. But you have to loosen up your definitions a bit.

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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nasch (profile), 13 Nov 2010 @ 5:51pm

Re: Re: Re: Re: oxymoron
I'm with Tiger. I get the joke, but it's joking that there can't be such a thing as a department of justice; that they're incompatible terms. It just doesn't work in the same way as military intelligence. The nature of departments is such that they don't have justice? "Misnomer" is a better word, but of course that isn't funny. :-)
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Anonymous Coward, 15 Nov 2010 @ 6:42am

Well after Meggie got a hold of eBay I stopped using it. It lost it's edge a long time ago. So far of the big shopping sites I no longer go to eBay or Amazon. They both patent software routines and that is wrong. They stifle creativity and progressive thinking because they can sue me for something as stupid as a menu layout. Screeeeeeew them.
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Anonymous Coward, 15 Nov 2010 @ 6:51am

Corporate lawyers now tie everyone's hands. The DMCA has been around for years and I have noticed nothing different with it or without it. If someone complained about content on our site we have a disclaimer (the lawyer said that was enough) that simply states we are a service operation and only provide certain services. All content is the sole responsibility of the person or persons posting or broadcasting it. Any complaints and we give them the name of the person that posted it and tell them they have to deal directly with that person. I also tell the complainer that for me to modify that persons web page is an invasion of privacy and I will not do it.
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Anonymous Coward, 15 Nov 2010 @ 10:36am

Re: Re:
I just think it's important to focus on the actual actor (e.g., eBay). I don't think service providers should be able to throw their hands up, say there's nothing they can do, and get off scot free without any scrutiny. They have a choice.
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nasch (profile), 15 Nov 2010 @ 11:24am

Re: Re: Re:
There should definitely be scrutiny of eBay, but it's important not to stop there, because the root of the problem is the DMCA. If you "solve" the eBay problem, it's just going to happen again tomorrow on some other site, because the messed up incentives are still exactly the same for everyone. eBay is more of a symptom than the problem.
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The Groove Tiger (profile), 15 Nov 2010 @ 2:29pm

Re: Re: Re: Re: oxymoron
Military Intelligence is ALREADY a "loose" (mis)use of the term oxymoron (it isn't: a real one is words that actually contradict, like "living dead"... just because I think Bob isn't funny doens't mean Funny Bob is an oxymoron, but at least in jest it... sorta works). Saying Justice Department is an oxymoron is like saying "Target Practice" is an oxymoron because I suck at target practice.
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MikeLinPA (profile), 20 Nov 2010 @ 4:54pm

Re: Re: Re: Re: Re: oxymoron
I am sorry that you suck at target practice. Maybe you can get a job on that hypothetical military base I mentioned. What size clown shoes do you wear? ; )
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