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How the “Mail & Guardian” got taken down

mg.co.za

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Re: How the “Mail & Guardian” got taken down

#61

Post by incompatible »

strogonoff wrote: post #58
incompatible wrote: post #51

Earlier quoted context omitted.

They probably just send you a counter claim without bothering to take anything down. Perhaps also a nasty note from their lawyers?

Wouldn’t it put them in violation of a federal law? If they send a counter-claim without taking the content down, can’t they be sued for DMCA non-compliance? The law appears to mandate immediate takedown for certain period of time regardless of counter-claim status. Playing devil’s advocate here, and may obviously be missing some points of the regulation.

I don't know about this. There's a difference between taking down supposed infringements from your users (or "subscribers") and your own material put on your own site by your own employees. I'm not sure that the DMCA mechanism is relevant for the latter.

Re: How the “Mail & Guardian” got taken down

#62

Post by kd5bjo »

strogonoff wrote: post #58
incompatible wrote: post #51

Earlier quoted context omitted.

They probably just send you a counter claim without bothering to take anything down. Perhaps also a nasty note from their lawyers?

Wouldn’t it put them in violation of a federal law? If they send a counter-claim without taking the content down, can’t they be sued for DMCA non-compliance? The law appears to mandate immediate takedown for certain period of time regardless of counter-claim status. Playing devil’s advocate here, and may obviously be missing some points of the regulation.

Honoring a DMCA takedown isn’t ever required, but ignoring one strips away the safe harbor protections for that specific content. This in turn makes you liable for any copyright infringement of that content as if you had published it yourself. If it’s legitimate, you’ll presumably win the court case and quite possibly get your attorney fees back.

Re: How the “Mail & Guardian” got taken down

#63

Post by kd5bjo »

leeoniya wrote: post #42
cft wrote: post #14

Earlier quoted context omitted.

Absolutely not. You can ignore a defective DMCA notices and see if the claimant files a lawsuit. Google routinely does this [1]. It is a business risk choosing between losing a client vs getting sued. If you value your clients, you should have a review process to access the legality of DMCA notices you receive. 1. https://torrentfreak.com/google-keeps-rejecting-hollywoods-b...

> You can ignore a defective DMCA notices and see if the claimant files a lawsuit. if you are your own ISP, then maybe you can. AFAIK, no ISP or hosting provider in the US is going to risk it. most (all?) ISPs require the customer to remove the content first and ask questions later.

Though it may take some time, a counter-notice reinstating the content is supposed to be just as automatic as a takedown removing it. Presumably, failure to do so has similar risks to the ISP of their customer suing them for a DMCA violation.

Re: How the “Mail & Guardian” got taken down

#64

Post by sharpneli »

strogonoff wrote: post #54
leeoniya wrote: post #46

Earlier quoted context omitted.

big players are either their own ISPs, hosting provides or most likely have SLAs in place that absolve their ISPs from liability and allow the companies to handle DMCA claims directly by dedicated departments. smaller players are subject to dealing with DMCA claims by proxy via their hosting providers. also, it would be easy for Amazon to prove bad faith by having many examples from a single claimant. smaller compani…

So a BigCo tells their ISP “feel free to keep the content up and break DMCA regulations, we’ll deal with it”, just like that? Doesn’t it mean one or both of them violate a federal law?

It doesn’t break the law. It just means if the content was in fact infringing then the ISP is also guilty of copyright violation.

They simply lose the safe harbor protection. So if they are sure it’s a false claim they can just ignore it.

Re: How the “Mail & Guardian” got taken down

#65

Post by NLips »

strogonoff wrote: post #56
ryacko wrote: post #45

Earlier quoted context omitted.

A single person LLC does not protect from perjury charges. Unfortunately DMCA perjury cases aren’t prosecuted.

Isn’t there a contradiction—if as you say DMCA perjury cases aren’t prosecuted, what’s there to lose for that hypothetical “DMCA troll” LLC?

I think the parent may just be suggesting that there's no need for the LLC wrapper, because it wouldn't hypothetically provide protection anyway.

Re: How the “Mail & Guardian” got taken down

#66

Post by jen729w »

prepend wrote: post #55
adrianmonk wrote: post #13

> Our questioning the veracity of the complaint did not seem to make any difference. Linode is an ISP, not a court of law. Legally, it's not up to them to make this determination. If they are compelled to take down a site by law, then their opinion about the veracity of the complaint is not really relevant. Unless they want to defy the law in order to go out on a limb to protect a customer. Which is a lot to ask of a…

It’s extremely relevant because they can deny the dmca notice. Linode is protecting themself over their customer. This is a strong signal to customers to find a better ISP. One who plans on legal funds to defend customers against these bullshit dmca notices.

> One who plans on legal funds to defend customers against these bullshit dmca notices.

I would love to agree with you, but are you gonna pay someone $20/mo for Linode’s $5/mo service? Of course not; and therein lies financial ruin for the ISP.

The system is fucked.

Re: How the “Mail & Guardian” got taken down

#67

Post by SiempreViernes »

314 wrote: post #48
mherdeg wrote: post #16

I'm kind of amazed at how effective this digital reputation management technique is: * publish an exact copy of the offending content on a web site and include something that looks like a datetime which is earlier than the publication date of the offending content * tell the web site's ISP and other service providers that they're violating copyright, pointing to your fake content and using the providers' copyright-vi…

Why not file a counter-claim and then make them attempt to prove their copyright in a real court?

The counter claim would do noting to prevent your own content from going down: the service providers very clearly don't care about the legitimacy of DMCA claims, they just automatically comply and let their customers suffer damages for all the false claims.

Re: How the “Mail & Guardian” got taken down

#69

Post by strogonoff »

kd5bjo wrote: post #62
strogonoff wrote: post #58

Earlier quoted context omitted.

Wouldn’t it put them in violation of a federal law? If they send a counter-claim without taking the content down, can’t they be sued for DMCA non-compliance? The law appears to mandate immediate takedown for certain period of time regardless of counter-claim status. Playing devil’s advocate here, and may obviously be missing some points of the regulation.

Honoring a DMCA takedown isn’t ever required, but ignoring one strips away the safe harbor protections for that specific content. This in turn makes you liable for any copyright infringement of that content as if you had published it yourself. If it’s legitimate, you’ll presumably win the court case and quite possibly get your attorney fees back.

Thanks for patient explanation.

I guess, to sum up, the current system enables smaller players (commenters, vloggers, site authors) to publish on the Web through intermediaries of all kinds (like Linode or YouTube). Those intermediaries want to make sure they don’t get sued for the content they host, so they use safe harbor and observe DMCA.

Those enjoying more direct access to the backbone (metaphorically and possibly literally speaking) of the Internet trust their legal teams and don’t need safe harbor protections.

Thus if you are lucky enough to not need the safe harbor protections, you have the ability to bully smaller fish by issuing takedowns left and right.

Re: How the “Mail & Guardian” got taken down

#70

Post by zbuf »

prepend wrote: post #55
adrianmonk wrote: post #13

> Our questioning the veracity of the complaint did not seem to make any difference. Linode is an ISP, not a court of law. Legally, it's not up to them to make this determination. If they are compelled to take down a site by law, then their opinion about the veracity of the complaint is not really relevant. Unless they want to defy the law in order to go out on a limb to protect a customer. Which is a lot to ask of a…

It’s extremely relevant because they can deny the dmca notice. Linode is protecting themself over their customer. This is a strong signal to customers to find a better ISP. One who plans on legal funds to defend customers against these bullshit dmca notices.

> Linode is protecting themself over their customer.

Is there any business that would not do this, or would do the opposite?

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