A Mix Of Good And Bad Ideas In NAFTA Replacement

from the not-great,-but-some-useful-concepts dept

Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements, other than to acknowledge that the legacy copyright industry has spent decades demanding that they be included in those agreements. I've mentioned it many times in the past, but the book Information Feudalism should be required reading on this subject, showing how copyright interests effectively hijacked the international trade agreement process to force through domestic policies they wished to have. The internet community mostly ignored the trade agreement process for years, allowing the RIAAs and MPAAs of the world to run rampant and get more or less whatever they wanted in smokey backrooms, before running home to Congress demanding that we pass new laws to "live up to our international obligations."

When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.

And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.

Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).

Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.

We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.

On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.

This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.

On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.

Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

This is useful, especially as CDA 230 and DMCA 512 are under attack. Again, I'm disappointed that we should need to use "trade agreements" to argue this point, but since others are trying to undermine intermediary liability through trade agreements, there needs to be some pushback, and this does establish that in a clear manner. Hilariously, a former RIAA exec who was instrumental in getting copyright expansions placed into trade agreements around the globe is now whining about how awful it is that intermediary liability protections are found in this new agreement, citing concerns raised by plenty of people who support these protections, but who in the past protested efforts to expand copyright rules through those trade agreements. What a hypocritical position for him to take. Dude, you were the one who forced these issues into trade agreements: don't freak out and cry about it when you face some level of pushback in the form of policies you dislike. You made your bed.

In the end, again, it's disappointing that these issues should be in a trade agreement at all. None of this really has anything to do with "trade" in the traditional sense. But they are in this agreement, and thus we should hope that they get the various issues right. The inclusion of intermediary liability protections is clearly a good result if you must include these kinds of provisions, but the copyright and biologic expansions are still incredibly problematic. Unfortunately, it seems likely that the response from the USTR or anyone else will be "well, you win some, you lose some" rather than fixing the problems.

Filed Under: biologics, canada, cda 230, copyright, copyright term, intermediary liability, mexico, nafta, notice and notice, notice and takedown, section 230, trade agreements, usmca

American Copyright Trolls Continue To Abuse Canadian Courts In Search Of Easy Settlements

from the canada-nice-meets-american-thuggery dept

In the United States, copyright trolls are finding it more difficult to save on filing fees by pursuing file sharers en masse. More than a few judges have shot down attempts to file infringement suits against "Does 1-30," etc., ruling that these defendants are improperly joined.

Meanwhile, in Canada, copyright trolls are trying a novel approach to suing alleged file sharers in big bunches: the reverse class action. Voltage Pictures is suing a nominative "class" of Does yet to be named for copyright infringement. This is its attempt to route around restrictions placed on it by another court, as well as the costs associated with complying with the demands.

But in doing so, Voltage Pictures is making a mess of Canadian privacy laws. Rogers, the service provider standing between Voltage and the subscriber information it's demanding, wants to know why the studio is abusing Canada's "notice and notice" system to obtain information it's not supposed to be able to acquire without a court order.

[V]oltage is using the notice-and-notice system to argue that it is entitled to subscriber information. It argues in court documents that the system is designed to allow copyright holders to “inexpensively identify and locate the infringers of copyright.”

Yet the reality is that the government did not intend for the rules to make it easy to disclose the identity of alleged infringers, with the ISPs prohibited from simply handing over such information.

Canadian courts have established rules that may compel ISPs to hand over subscriber information, but there are strict limitations in how the information can be used and restrictions on public disclosure.

The "notice and notice" system is supposed to be used by ISPs to pass on infringement allegations to affected customers. What it's not supposed to do is provide subscriber info to rights holders. In the past, rights holders have routed around this perceived "limitation" by inserting settlement demands into something that's only supposed to be a notification.

Now, in this reverse class action, Voltage is going to use whichever subscriber name it happens to pry loose first as the "lead defendant" in the lawsuit. Instead of "Doe," the lawsuit will be amended to carry that unlucky person's name on the first page, and designate that person as "representative" of every other Doe Voltage has yet to unmask. Obviously, the privacy implications for that person are immense.

By using this odd tactic, Voltage can hope to extract subscriber info that wouldn't be released to it under the "notice and notice" system. The reversal of roles in the litigation also poses other problems. While it's not too tough for multiple plaintiffs to secure representation in class action suits against a single, most-likely profitable corporation, it's highly unlikely that the "class action" defendants will find adequate representation, either as a group or individually.

In total, this role reversal is nothing more than a trolling operation trying to maintain maximum efficiency by routing around any obstacles placed before it by courts or legislators. Using nothing more than batches of IP addresses harvested by "infringement monitoring" software, Voltage and others are continuing to attempt to convert courtrooms into revenue streams.

Filed Under: canada, copyright, copyright trolling, notice and notice, settlements
Companies: rogers, voltage pictures

Patreon Moves To Give Users A Chance To Respond To DMCA Notices Before Taking Down Content

from the good-move dept

We've seen all sorts of problems with the DMCA's notice and takedown system that is frequently abused. Many companies, either because they want to avoid any risk of liability or because they don't actually understand the details of the law, resort to a stance of automatically taking down anything upon receipt of a takedown notice, no matter how bogus. Some companies have gotten much better at reviewing the details of takedown notices before agreeing to just take down the content. However, some are going even further in trying to find that right balance. A little over a year ago, we wrote about Github moving to a system whereby the company will notify users of DMCA notices first, and give them a chance to modify the code before it's taken down.

Now it appears that the (really awesome) crowdfunding site Patreon is doing something similar, notifying users before taking down any content:

We do a lot of user research here at Patreon to improve our product, and even our non-product services. When asked about DMCA notices, one thing that many creators mentioned is that they just wanted to be warned and have the option to act on it themselves instead of having an automated system remove the content.

As a result, we are giving creators 48 hours to handle a DMCA notice on their own before we step in to take action ourselves. This does increase our legal risk, as the “expeditious” removal speed required by the DMCA is not very clear, but we feel very strongly about warning our creators and giving them a chance to act.

Sometimes a DMCA notice requires removal of specific content on a creator’s page. In that case we tell the creator that they have 48 hours to remove the content themselves before we will remove it for them.

As I noted when Github made its change, this move is great, even if it's a little surprising. We've long advocated for a system that is a "notice and notice" system, rather than a "notice and takedown." Under such a regime, things would act much more like the way Github and Patreon are now handling things -- giving the user notice to either make changes or counternotice the request before the content is actually taken down. As Patreon's lawyer notes, this does increase the liability to Patreon, because someone certainly could sue, and say that the 48 hours doesn't meet the DMCA's "expeditious" requirement for removals. However, if more companies move to a system like Patreon's and Github's, perhaps we could move the norm from today's notice and automatic takedown, to one that is effectively "notice and notice," which would lead to many fewer malicious takedowns.

Patreon is also doing its best to help users understand how to properly provide a counternotice (also something that Github did), but even going a step beyond that, pointing users to discounted legal support if they want a lawyer to review a counternotice:

We also forward them the DMCA notice we received and specific instructions on how to send a counter-notice. Sending a counter-notice carries a lot of legal risk for creators, so we have partnered with attorneys who represent creators to offer a guaranteed flat rate of $350 for a counter-notice review to take some of the uncertainty out of the process. If you aren’t using an attorney, then counter-notice instructions can be confusing, so we’ve made every effort to simplify them.

While you might assume that not many people will want to pay $350 -- if it's a Patreon user who's making a lot more money than that, it could obviously be well worth it.

One other feature of Patreon's new DMCA policy that's pretty interesting, and as far as I know, totally unique in the space, is to actively help users who the company feels it needs to takedown their entire page, but who it doesn't feel are engaged in "blatant piracy," to immediately set up a new page:

Unfortunately, in other cases a DMCA notice requires removal of a creator’s entire page. When the notice is for derivative works, and not blatant piracy, we are always happy to have the creator come back to Patreon with a new page. Many creators take their first steps by using others’ content as a starting point. They sometimes create content that isn’t protected by fair use, but still requires huge amounts of hard work and talent. In those cases, we encourage them to come back to make a new page and use those skills to create original works.

To help facilitate this we also send them a CSV file of all of their patrons and encourage them to create a new Patreon page immediately so they can start migrating patrons in the 48 hours before we take their page down.

I will say that this part, at the very least, has me a little confused. If the work is that unique, then there should be a pretty strong fair use argument in response -- and the DMCA wouldn't "require" the removal of the page. But it is a legally wishy-washy area, so I can see why Patreon might take this stance. Of course, as we saw with the recent Cox/BMG legal fight, the reason Cox lost its DMCA safe harbor protections was because it would automatically help to bring back on customers it had cut off. That's a slightly different situation, because it involved the "repeat infringer" policy, rather than a response to a single DMCA takedown request -- but again it shows that Patreon is at least shouldering some increased legal liability in the belief that its users deserve a better overall experience than the default manner in which the DMCA process encourages companies to act.

Kudos to Patreon for taking this step, though it really demonstrates (yet again) how out of step with reality the DMCA is today, in that such user-friendly policies actually put the company at greater legal risk.

Filed Under: censorship, copyright, counternotification, dmca, fair use, notice and notice, notice and takedown
Companies: patreon

No Surprise: Rightscorp Already Abusing Canada's Notice & Notice System To Send Bogus Shakedown Letters

from the why-not dept

While Canada's new notice and notice copyright notification system has some problems, it's significantly better than almost every other attempt to do something similar. Of course, that doesn't mean it won't be abused, and apparently the first company to rush bumbling through the "abuse" door would be none other than Rightscorp, the copyright trolling operation that is no stranger to questionable practices and legal interpretations.

Michael Geist has the details of a totally bogus "notice" that Rightscorp has been sending to Canadian users via the new system. Geist does a nice job highlighting all the "mistakes" with Rightscorp's letter:

The notice falsely warns that the recipient could be liable for up to $150,000 per infringement when the reality is that Canadian law caps liability for non-commercial infringement at $5,000 for all infringements. The notice also warns that the user’s Internet service could be suspended, yet there is no such provision under Canadian law. Moreover, given the existence of the private copying system (which features levies on blank media such as CDs), personal music downloads may qualify as private copying and therefore be legal in Canada.

In addition to misstating Canadian law, the notice is instructive for what it does not say. While a recipient might fear a lawsuit with huge liability, there is very little likelihood of a lawsuit given that Rightscorp and BMG do not have the personal information of the subscriber. To obtain that information, they would need a court order, which can be a very expensive proposition. Moreover, this is merely an allegation that would need to be proven in court (assuming the rights holder is able to obtain a court order for the subscriber information).

From the actual letter itself, it's pretty clear that Rightscorp is just sending an identical version of the letter it sends in the US to ISPs hoping they'll pass it on to the customer (most don't). It even cites US copyright law, rather than Canadian code. And that $150,000 number is the US statutory maximum (and even that's misleading, but that's another post for another time).

Of course, Rightscorp doesn't care. It's not interested in going to court. Its entire business model is based on volume: specifically scaring enough people to "pay up" to avoid a lawsuit that wouldn't be coming in the first place. So what does it care? Under Canadian law, ISPs will pass along the notification, and Rightscorp can cite laws from the US, Canada or Sudan for all it cares about the actual law. All it wants is to frighten people into paying, even if its legal arguments are completely nonsensical.

Filed Under: canada, copyright trolling, notice and notice, takedowns
Companies: bmg, rightscorp

Canada Preps Launch Of An Actually Mostly Sensible ISP Copyright Warning System

from the almost-getting-it-right-for-once dept

Over the last several years, Canada has been working on copyright reform that not only actually makes sense, but, unlike efforts like SOPA here in the States, actually tries to incorporate user concerns (gasp). As part of that reform Canada reworked its ISP-to-user copyright infringement notification process, steering it toward a "notice and notice" system, which as we've noted in the past is vastly preferable to notice and takedown (or the ridiculous notice and staydown efforts) as it's less likely to stumble drunkenly into the realm of censorship and a litany of other abuses.

Canada's new ISP notification system is preparing to finally take flight starting January 1, and like the country's copyright reform efforts, it tries to actually incorporate the concerns of all parties involved (gasp, again). The system is first and foremost designed to raise awareness of copyright violations. That really doesn't take much -- Canadian ISPs state that simply notifying the user (especially the user's parent) puts a big dent in infringement right out of the gate. More specifically, ISPs claim 89% of notice recipients don't infringe after the second notice.

Canada's implementation manages to educate Billy's parents on copyright while still managing to protect user identities and legal rights. And while Canada's notice and notice system requires that ISPs forward on copyright violation notices to subscribers (for penalty of up to $10,000 if they refuse), it then grants legal ISPs safe harbor protection from liability. If a copyright holder isn't happy with this and wants to proceed with legal action, they have to follow strict procedures and go get a court order (gasp, in triplicate).

Generally, the system is seen as a step up for copyright reform, though that's not to say Canada's implementation doesn't have faults. As Canadian law professor Michael Geist notes, their notice and notice system doesn't specify what the notices should say, leaving the door open to "settlement-o-matic" threats. Since the entertainment industry also isn't required to compensate the ISPs for the workload, you the consumer will of course be paying for the program in the form of broadband rate hikes:

"There are fears that Internet providers will be inundated with notices, particularly since the government decided against establishing a fee for forwarding them. That could lead to increased costs for consumers. Moreover, the government also declined to specify the precise content of the notices, leading to concerns that some copyright holders may include threats to sue alongside dubious demands to settle the allegations for thousands of dollars."

Geist proceeds to note that Canada gets it mostly right and its implementation of copyright infringement notifications will likely be emulated by other countries. Well, probably not the States, where it seems inevitable the U.S. ISP notification effort (aka "six strikes") is destined to grow increasingly bloated as the entertainment industry slowly but surely demands expansion of the program. As it stands in the States, many infringers have simply hidden infringement by using popular BitTorrent proxy services. While Canada is busy getting it right, perhaps here in the States we can start seriously exploring outlawing proxies and VPNs to the benefit of job creators everywhere?

Filed Under: canada, copyright, isps, notice and notice, takedowns

GitHub Promises To Alert Users To DMCA Notices Before Taking Content Down

from the interesting... dept

For many, many years, we've noted the serious problems of the DMCA's "notice and takedown" provisions -- which, arguably, violate the First Amendment. A potential alternative regimen, which would be much more reasonable, and avoid many of the censorship problems of the DMCA, would be to do a notice and notice setup, in which service providers would pass along notices to the user, with an established time period for that user to respond, either by fixing the issue or issuing a counternotice. Then the service provider could decide how to respond, in either taking down the content or leaving it up. Unfortunately, that's not how the current DMCA safe harbors work. The notice-and-takedown provision does not require immediate takedown, but heavily incentivizes it by granting the service provider immunity from liability if they take the content down. This doesn't mean that the service provider is automatically liable if they choose not to take the content down (courts have found service providers to still be protected otherwise), but they can't use the simple and quick process of the safe harbor to get any lawsuits dismissed. Rather they might have to go through the full process of the lawsuit. Thus, some companies immediately take down all requested content in response to a DMCA request, just to give themselves protections under the safe harbor. Many, more reasonable, companies at least do a first-pass review over how legitimate the DMCA notice is, rejecting obviously frivolous ones, but still quickly taking down plenty of content (often mistakenly).

Github, the super popular site for storing software repositories has been hit with more than a few DMCA notices in its time -- in fact, it has a repository publicly listing them all. Just recently, we had noted some controversial ones, including Qualcomm shutting down its own repository and the MPAA taking down Popcorn Time repositories, despite them containing no MPAA copyright covered material.

Github has now made a very interesting move in changing its DMCA process to one that is basically a notice-and-notice policy, and one which also does not create collateral damage for non-infringing forks of projects.

• First, whenever possible, users will have a chance to fix problems before we take content down.
• Second, we will not automatically disable forks in a network based on the takedown of a parent repository unless the takedown notice explicitly includes them.
• Last but not least, we've published a completely revamped DMCA policy as well as a pair of how-to guides for takedown and counter notices to make our process more transparent and easier to understand.

It's that first one that is most interesting to me for a variety of reasons. The company admits that it sort of did this informally in the past, but now it's official policy:

The first change is that from now on we will give you an opportunity, whenever possible, to modify your code before we take it down. Previously, when we blocked access to a Git repository, we had to disable the entire repository. This doesn't make sense when the complaint is only directed at one file (or a few lines of code) in the repository, and the repository owner is perfectly happy to fix the problem.

In practice, our support team would often shuttle messages between the parties to work out a way for them to fix it. That usually worked out well and everyone ended up happier at the end of the day. So we are making it a formal part of our policy, and we are going to do it before we disable the rest of the repository.

It's absolutely true that this seems like a much better overall policy for everyone -- but it's still surprising (if unfortunate that it's surprising) that any company would be willing to take such a step, since, technically it's opening the company up to some amount of greater liability -- and lawyers tend to be averse to any move that may increase a company's legal liability. So, kudos to Github and its lawyers for recognizing that sometimes you have to let in a little legal risk for the good of the overall community.

Filed Under: copyright, dmca, liability, notice and notice, notice and takedown
Companies: github

If We're Going To Change DMCA's 'Notice & Takedown,' Let's Focus On How Widely It's Abused

from the time-to-fix-the-real-problems dept

Earlier today, we wrote about a push by copyright maximalists for a new censorship regime that they call "notice and staydown" as a sort of replacement for SOPA. The idea would be to shred the existing DMCA safe harbors (which give service providers protection from legal liability if they take down content upon notification by the copyright holder that it's infringing), and make some dangerous requirements that service providers would then have to proactively police their sites to guarantee that no other versions of that content ever show up (even if the other versions may be legal). But, if we're looking at the notice and takedown provisions of the DMCA, we should really be exploring how much damage they do. Rather than "notice and staydown" or even "notice and takedown" it's time we move to a much more reasonable "notice and notice" system.

Thankfully, Automattic's (makers of WordPress) general counsel, Paul Sieminski's testimony at yesterday's hearing highlighted this problem in a big way, pointing out that Automattic sees plenty of DMCA takedown abuse.

At Automattic, we've seen an increasing amount of abuse of the DMCA's takedown process. The DMCA's takedown process provides what can be an easy avenue for censorship: simply send in a DMCA notice claiming copyrights in a piece of content that you don't agree with. Regardless of whether you own the copyright, the service provider that hosts the content must take it down or risk being out of compliance with the DMCA.

Recent cases of abuse have been well documented. For example, we recently filed an amicus brief in support of Stephanie Lenz's lawsuit against Universal Music Group. In that case, Ms. Lenz posted a home video of her young child dancing in their family kitchen to a song by the artist Prince. Soon after posting, Universal Music (Prince's record label) sent a DMCA takedown notice to remove the video, claiming it infringed on their copyright in the music playing in the background.

In our amicus brief, we, along with the internet companies who joined us, outlined many other recent examples of misuse of the DMCA that we've seen on our respective platforms. For example:

• A medical transcription training service using forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
• A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
• A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
• An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
• A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.

Sieminksi also discussed Automattic's recent decision to sue over two particularly egregious abusive DMCA notices -- and to highlight how there's really very little in the way of recourse for those whose legitimate content is taken down over such abusive tactics.

And this is not a small problem. The same day, the folks over at CDT released a detailed report on meritless DMCA takedowns of political ads, noting how frequently the DMCA is used to censor important political speech. Pointing out that these takedowns clearly have nothing to do with copyright and everything to do with censoring political speech, CDT notes just how damaging the DMCA has become on this front.

In addition to that, Ed Black from CCIA published a piece about how important it is to stop the abuses of DMCA takedowns, highlighting how it's often used to attack competitors or content someone just doesn't like:

Congressional inquiry could shed light on how DMCA takedown tools have been abused. For example, academic researchers found a large number of cases in which businesses targeted competitors, such as one case identified in the recent Google Transparency Report where a driving school sought its competitor's homepage to be disappeared from search results, on the basis that the competitor had copied an alphabetized list of cities. Other examples of attempted takedowns involved an employer targeting blog posts by a disgruntled employee and a movie studio seeking to suppress a review.

DMCA abuse has also stifled speech over unfavorable interviews, embarrassing news stories, and political campaign videos. Some rights-holders fired multiple takedowns at an unflattering documentary about their legal war with the Pirate Bay. HBO even sent takedowns over lawful open source software, and just last week, it was reported that the DMCA was used to try to take down publicly available facts (which likely aren't even protected by copyright).

Finally, Public Knowledge's Sherwin Siy has a great opinion piece at Wired, in which he talks about how the "notice and takedown" system was designed as a "compromise" between copyright holders and service providers, but completely left out the people that copyright is supposed to benefit the most: the public:

This is not a two-sided issue. By only looking at copyright holders and online services, we neglect the interests of the most populous sector involved in copyright law: the public.

The safe harbors essentially are a safe harbor for online services, which host users' content like YouTube or Facebook. If a user of those services uploads something that infringes copyright, the host's liability is limited so long as it acts promptly to a takedown notice from the copyright holder. Each side gets something: the copyright holder gets a rapid removal of the infringing content, and the host gets safety from a potentially costly infringement lawsuit. But what happens to the users? Their uploads have been removed, and they're still potentially on the hook for massive statutory damages in a lawsuit.

We've discussed in the past how there are serious First Amendment concerns about "notice and takedown" provisions, in that they use government pressure to stifle free speech, placing huge potential liability on companies who don't disappear content based solely on the say-so of a single party.

And the simple fact is that there are better systems that would minimize the censorship risk. A basic "notice and notice" system is greatly preferable to a notice-and-takedown system (and, of course, the ridiculous notice-and-staydown). Under a notice-and-notice system, after receiving a notice, the service provider alerts the actual person who uploaded/created the content that is being targeted as infringing, providing them an opportunity to respond prior to taking down the content. There could be a set time, after which a lack of response would lead to a takedown. That way, most legitimate content is not censored, and the power of the DMCA safe harbors as a tool for censorship is greatly limited. Actually infringing content still gets removed in a timely fashion. It's such a reasonable solution that it will never happen with this Congress.

Filed Under: abuse, censorship, copyright, dmca, notice and notice, notice and staydown, notice and takedown, section 512
Companies: automattic