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A bill in Congress legalizes cell phone unlocking and fixes the DMCA

fixthedmca.org

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Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#71

Post by dragonwriter »

wtallis wrote: post #62
dragonwriter wrote: post #56

Earlier quoted context omitted.

> The DMCA takedown procedure still gives too much power to the accuser, without sufficient penalties for improper notices. Since it implements a "guilty until proven innocent" system The takedown procedure is not, stricly speaking, "a guilty until proven innocent" system. Its a system that provides immunity from liability for illegally distributing copyright protected content provided that it was originally submitte…

The takedown procedure as it currently exists enables a third party to exercise power just shy of an injunction to take your website offline, without having to present any evidence or appear in court. Yes, your hosting provider has the theoretical option of assuming a ton of risk by not taking down the content, but they're basically being blackmailed by your accuser. And all this applies even if your website is compl…

> The takedown procedure as it currently exists enables a third party to exercise power just shy of an injunction to take your website offline, without having to present any evidence or appear in court. Yes, your hosting provider has the theoretical option of assuming a ton of risk by not taking down the content

Without the DMCA safe harbor, the content host would be in a very similar position when presented with a demand to remove the content from a content holder. The only difference the safe harbor provides is that the content holder can't be sued for content they accept and distribute but don't exercise editorial control over unless the content owner gives a takedown notice and the content host ignores it, so that, as a consequence, content owners can't skip the whole demand step and just start filing low-chance-of-success, high-reward lawsuits against deep-pocket defendants.

> I'm not at all arguing in favor of eliminating the safe-harbor provisions - I just want the penalties for a false notice to be at least as harsh as the penalties for a false counter-notice.

> I just want the penalties for a false notice to be at least as harsh as the penalties for a false counter-notice.

The penalties for both are the same, and are specified in the same paragraph without distinction, at 17 USC 512(f):

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.

Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#72

Post by SoftwareMaven »

sinak wrote: post #47
sinak wrote: post #31

Earlier quoted context omitted.

FightForTheFuture's CISPA page has a good tool for this: http://cms.fightforthefuture.org/cispa/

I'll actually throw a link up to this on the post-email modal so that people can call if they want to.

FWIW, it is a little confusing getting dumped into a CISPA page after looking at a DMCA page, especially with the sample conversation. I realize this was a quick-turnaround project, so please take it in the constructive way it is meant.

Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#73

Post by rhizome »

yew wrote: post #55
rhizome wrote: post #44

Earlier quoted context omitted.

Raising the question, maybe. However, for instance, in the eventuality that this bill passes, it will still be illegal to link to certain content. It only touches sec. 1201.

I definitely wouldn't say that this bill 'fixes the DMCA', but it certainly corrects some of the most gratuitous issues. The DMCA doesn't explicitly affect linking to infringing content - that's mostly on the courts that have made that interpretation, even if the DMCA has helped to enable them. Trying to revise or remove the DMCA wholesale would be a much more difficult undertaking, and correspondingly less likely to…

The DMCA doesn't explicitly affect linking to infringing content - that's mostly on the courts that have made that interpretation, even if the DMCA has helped to enable them.

Correct, the DMCA has made it possible for linking to infringements to be found illegal. This bill doesn't touch that. You can't just handwave it to the courts when the DMCA is the foundation of their opinion. The DMCA is still responsible for its unintended consequences.

Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#74

Post by dragonwriter »

yew wrote: post #67
dragonwriter wrote: post #60

Earlier quoted context omitted.

> So in practice the DMCA takedown procedure provides a method of immediately (and often permanently) removing content (not necessarily infringing) from any major provider. I don't think the DMCA takedown procedure is much involved. The actual problem that causes that is the resource imbalance between content owners and individual users. Without the DMCA takedown procedure and its associated liability shields, instea…

The DMCA takedown procedure (including that safe-harbor provision) provides a special incentive towards compliance with 'content owners' (who may or may not actually own the content in question), apart from but dependent on litigation. The situation before the DMCA was preferable because it involved only the general legal system rather than a badly-designed special case. It's not merely the result of a resource imbal…

> The DMCA takedown procedure (including that safe-harbor provision) provides a special incentive towards compliance with 'content owners' (who may or may not actually own the content in question), apart from but dependent on litigation.

It provides an equally special incentive to comply with users; the safe harbor has two sides.

The difference in effect is the same as the difference in effect in threat of litigation absent the safe-harbor: the difference in resources on the two sides and the significance of the liability the host might face from either side.

> The situation before the DMCA was preferable

If you didn't want to have big businesses freely hosting user-submitted content, maybe. Content owners weren't the backers for the safe harbor (they wanted the freedom to sue first and get money), content hosts were. It doesn't create additional incentives for content hosts to comply with content owners (real or purported), it removes pre-existing opportunities for content owners (again, real or purported) to extort content hosts.

Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#75

Post by wtallis »

dragonwriter wrote: post #71
wtallis wrote: post #62

Earlier quoted context omitted.

The takedown procedure as it currently exists enables a third party to exercise power just shy of an injunction to take your website offline, without having to present any evidence or appear in court. Yes, your hosting provider has the theoretical option of assuming a ton of risk by not taking down the content, but they're basically being blackmailed by your accuser. And all this applies even if your website is compl…

> The takedown procedure as it currently exists enables a third party to exercise power just shy of an injunction to take your website offline, without having to present any evidence or appear in court. Yes, your hosting provider has the theoretical option of assuming a ton of risk by not taking down the content Without the DMCA safe harbor, the content host would be in a very similar position when presented with a d…

> "The penalties for both are the same, and are specified in the same paragraph without distinction"

Take a look at the required elements of a takedown notice, and the required elements of a counter-notice. Look at which statements are made under penalty of perjury. There is a noticeable lack of equal protection there. Nowhere is the accuser required to perform any kind of due diligence to ensure that they have a justified takedown notice.

Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#76

Post by Avshalom »

smutticus wrote: post #37
ebbv wrote: post #15

This legislation doesn't entirely fix the DMCA. It fixes some problems but more remain. Copyright is some seriously fucked up shit right now. It has been dominated by big money interests for the last 50 years.

Forward progress is still forward progress.

More important forward progress provides precedent and momentum.

If chipping away at the DMCA turns out to be popular enough more politicians will be likely to do it.

Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#78

Post by nthj »

awj wrote: post #50
sinak wrote: post #33

Earlier quoted context omitted.

Ah, a budget ... what I would give to have one of those :). More seriously though, I have definite plans to build a click-to-call tool in the next couple of weeks, but this news was sprung on my late yesterday, leading to a mad rush to get that page ready in time for this morning. Next time there's an action like this for FixtheDMCA, there'll definitely be a way to call. And if I build it I'll almost certainly open s…

> More seriously though, I have definite plans to build a click-to-call tool in the next couple of weeks I'm not sure how you do this on Android, but for the iPhone it couldn't be much simpler[1]. Also, most mobile devices will detect and enable any phone number they find on the page, so just putting it there and easy to find is often enough. [1] http://developer.apple.com/library/ios/#featuredarticles/iPh...

Click to call isn't interesting because of connecting the actual phone number. It's a UX problem of minimizing the steps to figure out which Congressman belongs to the constituent visiting the page. [This gets way more complex on a state officials level.]

Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#79

Post by yew »

rhizome wrote: post #73
yew wrote: post #55

Earlier quoted context omitted.

I definitely wouldn't say that this bill 'fixes the DMCA', but it certainly corrects some of the most gratuitous issues. The DMCA doesn't explicitly affect linking to infringing content - that's mostly on the courts that have made that interpretation, even if the DMCA has helped to enable them. Trying to revise or remove the DMCA wholesale would be a much more difficult undertaking, and correspondingly less likely to…

The DMCA doesn't explicitly affect linking to infringing content - that's mostly on the courts that have made that interpretation, even if the DMCA has helped to enable them. Correct, the DMCA has made it possible for linking to infringements to be found illegal. This bill doesn't touch that. You can't just handwave it to the courts when the DMCA is the foundation of their opinion. The DMCA is still responsible for i…

The DMCA is still responsible for its unintended consequences.

I'm in complete agreement. But fixing that issue will be more difficult than fixing this one, in my opinion. Getting this bill passed would do some good even if it is overstating things a little.

Re: A bill in Congress legalizes cell phone unlocking and fixes the DMCA

#80

Post by yew »

dragonwriter wrote: post #74
yew wrote: post #67

Earlier quoted context omitted.

The DMCA takedown procedure (including that safe-harbor provision) provides a special incentive towards compliance with 'content owners' (who may or may not actually own the content in question), apart from but dependent on litigation. The situation before the DMCA was preferable because it involved only the general legal system rather than a badly-designed special case. It's not merely the result of a resource imbal…

> The DMCA takedown procedure (including that safe-harbor provision) provides a special incentive towards compliance with 'content owners' (who may or may not actually own the content in question), apart from but dependent on litigation. It provides an equally special incentive to comply with users; the safe harbor has two sides. The difference in effect is the same as the difference in effect in threat of litigation…

It provides an equally special incentive to comply with users; the safe harbor has two sides.

It provides very nearly no incentive whatsoever to comply with users. What provisions it does provide are practically unenforceable due to absurdly high standards for users and absurdly low standards for 'content owners'.

I don't care a whit for your interpretation of the law. Especially when your interpretation flies in the face of the text of the DMCA (see in particular sec 202 on standards for perjury, which differ significantly for notices and counter-notices). I care about results - and the results, across dozens of major content hosts, speak for themselves.

The DMCA has not only failed to protect users and content creators who aren't 'content owners', it has also given rise to independent policing mechanisms modeled on and derived from it but with even fewer protections.

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