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How the “Mail & Guardian” got taken down

mg.co.za

91–98 of 98 posts

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

#91
The publishing business is often seen as merely being one of creating and publishing content. I've come to realise it's rather more than that.

There are the technical elements -- what many HN readers are familiar with in terms of development, back-end, front-end, and infrastructure tools.

There is the art of developing the content in the first place, including the methods in this case of investigative journalism.

There is the whole maelstrom of business models and monetisation, on which virtually all attempts have been foundering of late.

But there's also the legal side, both offensive and defensive. Pursuing sources, information, and disclosures. And defending the publisher against attacks, such as the one described here. The publication of Permanent Record highlights another element, that of contracts and publication risk when faced with a state-level actor and an alleged NDA privilege. There are famous battles against defamation or censorship lawsuits. And there is the pursuit of others who take content without payment or credit, claiming it for themselves.

In many histories of great publishing events and episodes, lawyers (and publishers with spinal, intestinal, and gonadal integrity) play a huge role, and publishing houses or newspapers as much respected for their solicitors as their journalists and editors.

It's not just a business that concerns getting words on a page, or screen. The words have to matter, the words have to be right, the lights must be kept on, the words distributed. And, if your business is afflicting the comfortable and comforting the afflicted, resisting and challenging some very motivated and extraordinarily capable adversaries.

This is something advocates of "citizen-based journalism", or peer-to-peer or federated technologies, or DIY technical solutions, of whom I very much count myself as a former and current member, have long failed to appreciate.

The Mail & Guardian's message here is one to remember.

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

#92

Earlier quoted context omitted.

I didn't realise people bothered to put up fake websites. I thought a plausible-looking DMCA notification was sufficient to get a provider to take something down.

If it were so easy and cheap as many comments on this page imply, why aren’t we seeing this often used against large well-known businesses in bad faith? E.g., someone creates a puny single-person LLC, and files DMCA notices against New York Times, Amazon blog posts, Apple press releases, et cetera. According to claims I see here, the content will have to be down for 10-14 days regardless of how quickly the counter-cl…

TL;DR: the DMCA takedown provisions apply only to third-party service providers identified as a Designated Agent, and can be avoided by self-provisioning online services. Or finding a provider with balls.

The specific mechanism of the DMCA is that:

1. It is a protection afforded online service providers, specifically, against infringement liability. (17 USC 512(c))

2. Against copyright infringement (17 USC 512(c)(1)).

3. For third-party content (17 USC 512(c)(1)).

4. Of which the provider does not have specific knowledge that the content is infringing (17 USC 512(c)(1)(A)(i)). (More on this below.) And does not directly benefit monetarily (17 USC 512(c)(2), and acts to disable access expediciously (17 USC 512(c)(3)).

5. Where the provider has a designated agent. (17 USC 512(c)(2)

6. A valid notification request is received, (17 USC 512(c)(3)

https://www.law.cornell.edu/uscode/text/17/512

A consequence of all of this is that a self-serving online service provider does does not qualify for the relief as the content is not third-party. By designating itself as the Designated Party, it can choose to receive DMCA requests directly, and assume the risks of infringment claims itself.

There is nothing in the DMCA that says a service provider must act on a claim. Only that the liability protections offered apply only if it does. Linode, here, absolutely could have taken the principled stance that the content was not infringing, and refused to act on the notice it had received. Yes, this would incur a liability, but the overall legal risks of a patently false and malicious claim would be slight. I believe there are cases of this occurring.

NB: A longstanding criticism of the DMCA 512 provisions was that there was no liability for misrepresentations. That's now addressed in 17 USC 512(f), though I don't recall when this was added:

Misrepresentations.—Any person who knowingly materially misrepresents under this section— (1)that material or activity is infringing, or (2)that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Mail & Guardian would seem to have some remedy here, if they can successfully bring suit and collect judgement.

It's also possible that M&G could bring suit against Linode under 17 USC 512(g)(1) ("good faith" actions), though that's weakened by subsequent paragraphs. Informed legal opinion would be helpful here.

Note: I am a space alien cat, not a lawyer.

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

#93

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?

The DMCA takedown provisions don't introduce liability for actions, they remove it, under a specific set of circumstances, given specific responses to infringement claims.

You don't "violate the DMCA takedown law" by failing to take down content. You simply lose protections offered by it.

The federal law in question that might be violated would be exclusive rights under copyright, 17 USC 106

For these there are both civil and (in certain cases) criminal remedies possible.

https://www.law.cornell.edu/uscode/text/17/106

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

#94

Earlier quoted context omitted.

You wrote “not to mess with large companies”. What are the consequences of issuing a DMCA notice against content published by a large company?

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

If the content is the company's own, DMCA takedown doesn't apply.

If the content is a third party's, BigCo's option is to simply refuse the takedown, in which case the safe-harbour provisions (as you've been told repeatedly in this thread) don't exist.

Your understanding of the DMCA generally as expressed here is poor. You'd do well to read the law or a good explanation of it.

Copyright law is online at the Cornell University Law Server:

https://www.law.cornell.edu/uscode/text/17/

Subject matter, generally (see especially 106 & 106A): https://www.law.cornell.edu/uscode/text/17/chapter-1

Infringement and remedies, including DMCA safe-harbour provisions (section 512):

https://www.law.cornell.edu/uscode/text/17/chapter-5

EFF have a basic explanation: https://www.eff.org/issues/dmca

Lumen (previously the Chilling Effects Clearinghouse), has a longer explainer on DMCA Safe Harbour provisions: https://lumendatabase.org/topics/14

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

#95
post #48
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 DMCA requires contested content to be offline for at least 10 days, even if a counterclaim is filed.

If a counterclaim is filed, that period can extend to no more than 14 days....

Unless notice is received of a court action to restrain further publication.

17 USC 512(g)

https://www.law.cornell.edu/uscode/text/17/512

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

#96

Earlier quoted context omitted.

If it were so easy and cheap as many comments on this page imply, why aren’t we seeing this often used against large well-known businesses in bad faith? E.g., someone creates a puny single-person LLC, and files DMCA notices against New York Times, Amazon blog posts, Apple press releases, et cetera. According to claims I see here, the content will have to be down for 10-14 days regardless of how quickly the counter-cl…

TL;DR: the DMCA takedown provisions apply only to third-party service providers identified as a Designated Agent, and can be avoided by self-provisioning online services. Or finding a provider with balls. The specific mechanism of the DMCA is that: 1. It is a protection afforded online service providers , specifically, against infringement liability. (17 USC 512(c)) 2. Against copyright infringement (17 USC 512(c)(1)…

Thanks for the summary. I expect that the misrepresentations penalties would difficult or impossible to apply for takedown requests originating from outside the USA, as seems to be the case in this instance.

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

#97
post #84

Nobody's mentioned any tech solutions here. First of all, the Wayback machine may have captured the thieving site as well as the victim one. Of course, if you are going to make false copyright claims, you'd better set your robots.txt to exclude archive.org first. Second, if you do manage to dispute and get a day in court, how would the thief prov they owned the material, if the actual content creator had proof of the…

This looks like criminal fraud, but ianal...

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

#98

Earlier quoted context omitted.

AFAIK Content ID is an entirely extralegal system applied instead of DMCA, executed as a part of YouTube's TOS. It's used because copyright bullies would prefer not to involve courts if they can avoid it, and I suspect it exists to prevent MAFIAA from utterly destroying YouTube, as most of its value (until recently) came from copyright violation.

The content ID system is just a system for "search by video" or "search by audio". It doesn't do anything "instead of". Just helps copyright owners find infringing content. What they do after that is up to them.

In some strict sense that may be true, but in this discussion I think it is reasonable to read 'Content ID' as including YouTube's copyright strike system, demonetisation, and re-assignment of ad revenue to the claimed copyright holder.

These things are all very much extralegal, and used instead of the DMCA in many situations.

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