(no subject)

[theweaselking]

Quoth Bruce Baugh (bruceb):

There's shooting yourself in the foot.

There's reloading after emptying the clip, to shoot your foot some more.

There's taking the now-discharged gun to repeatedly beat on what remains of your foot so that you can try to cut it off by repeatedly banging a door on it.

This last appears to be what Andrew Burt, acting on behalf of the Science Fiction and Fantasy Writers of America, has accomplished. With his authority as SFWA Vice President, he issued DCMA take-down notices to a site that hosts miscellaneous text stuff...including essays and bibliographies that simply name authors of copyrighted material, and also (among many other things) Cory Doctorow's novel Down and Out in the Magic Kingdom. The one released under a Creative Commons license. The one he encourages people to distribute everywhere, freely. In the post I link to here, Cory explains just how unhappy he is about that and other aspects of the situation, and also some about just what legal liabilities SFWA and Burt may be incurring by acting this way.

That's right, dude just sent DMCA takedown notices for thousands of works for which he does not own the copyright, committing perjury on behalf of the SFWA in the process.

Comments

[itlandm.livejournal.com]

It doesn't look like a valid notice. I think the host may have goofed and taken down the files too quickly. If they have the usual TOS that says they can refuse hosting files at any time at their own discretion, there is probably very little to do. The message they leave in place of the files is dubious though (slander?).

Formalities aside, that's a thorough foot-shooting if I've ever seen one. Way to go to alienate members, customers, and the next generation of readers & writers.

[theweaselking.livejournal.com]

A validly formatted DMCA takedown notice is valid, REGARDLESS of the legitimacy of the claim to the copyright. I could send a DMCA takedown notice about your journal, and it would be valid. If Livejournal continues to host your journal after receiving my DMCA takedown notice, Livejournal can be held liable for any infringing content on your personal journal.

In short, the ownership of the copyright is irrelevant to the takedown notice. The notice is properly formatted, therefore the host has a choice: Take down the material and notify the person who put it up, or make themselves a co-defendant as a contributing party in any lawsuit that follows.

However, the notice contains a declaration under penalty of perjury that you are or reasonably believe yourself to be the owner[1] of the copyright to the material - which is clearly NOT the case in Andrew Burt's notices, which is one main issue here.

Actually, FYI, here's the DMCA takedown sequence as I understand it without being an American[2] or a lawyer:

1) (Alleged) Copyright Holder sends DMCA takedown notice to host, alleging infringement.

2) Host EITHER takes down the material and notifies the alleged infringer of the notice - go to (3), OR leaves the material up and becomes liable for hosting the material - go to (4).

3) Alleged infringer receives notification, and EITHER accepts the takedown without contesting it - go to (5), OR notifies the Host properly in writing that he does not feel that this is an infringement and that he intends to contest this in court. The host puts the material back up, but is not liable as a defendant. Only the alleged infringer is.

4) Lawsuit ensues. If the host refused the takedown notice, they are a contributing party to the infringement and can be held liable for it. If they did not, then only the defendant is liable. A court determines the *actual* state of the alleged infringement, and assigns penalties accordingly.

5) Many whiny blog postings, full of sound and fury, signifying nothing.

[1]: Or representative thereof, yes, yes.

[2]: And so, the DMCA doesn't apply to me. It applies to my livejournal because that's in California, but that's not the point.

[kjn]

You forgot 3b1) The host does not put the material back up. Go to 5.

[theweaselking.livejournal.com]

Actually, as long as the alleged infringer has submitted a properly formatted response, I believe the host can be held liable for *not* restoring the material immediately, if the alleged infringer is successful in the eventual suit.

Of course, they can and often do find some excuse to remove the material *anyway* on the grounds that they "didn't know" about it before and it violates some other provision of their TOS - but while that works just fine for Livejournal and Myspace and other sites of the kind, it's much, much harder for a proper web-hosting-for-pay company to swing. Take, for example, the DMCA takedown that Scholastic sent to NTT over the perfectly legal review of Harry Potter 7 that NTT's client, the New York Times, posted.

[kalieris.livejournal.com]

Wow. I wonder if Andrew Burt's next gig is going to be at 6-Apart?

[silmaril.livejournal.com]

I was reading the Making Light thread about this. It promises to be... entertaining.

[theweaselking.livejournal.com]

Yeah, I caught up on that, too, but I didn't see it until after I saw Bruce's post.

[graethorne.livejournal.com]

Ye Flipping Gawds...