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    DMCA Takedown Notice Extravaganza!

    Adam Holland, February 07, 2013

    Abstract: It has been a wild week or so in the DMCA takedown world.
    Chilling Effects discusses a variety of recent stories.

    There has been so much going on recently in the takedown world that it seemed to make more sense to do a round-up of related stories.

    "Three strikes" or "six strikes" laws have been in the news a lot recently. Regular Chilling Effects readers are probably familiar with these laws. First made famous by France's HADOPI law , but later put into place in New Zealand and the UK, and on track for going live in the USA very soon, they are intended to be a sort of compromise, wherein copyright violators (i.e. people who, without permission, download things that are still copyrighted) get a series of warnings and penalties, at the culmination of which, their Internet access is cut off.

    However the reality is a little more complicated. First off, the laws place ISPs in the business of policing their customers' activities. Imagine if your phone company monitored all your calls for possibly illegal activity. (Yes, I am aware that in the US, ISPs don't have the same legal status as phone companies –more's the pity). Setting aside the serious 4th Amendment issues, imagine the burden on the company! The job of policing the Internet in the US has therefore been given to a third party company, the newly formed Center for Copyright Information ("CCI") OK, sounds better than it might have been, right? An independent third party, not someone with a stake in one side of things. Hang on...

    "The Center for Copyright Information (CCI) is an American organization created by the Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA)".
    Oh well.

    Second, despite some claimed successes, it isn't clear that the laws work, in the sense of combating "piracy". There are serious potential data security issues that have put a temporary hold on enforcing the French law, (although it didn't ultimately stop them) the lawsuits against downloaders either never materialize, are pointless to bring except perhaps as setting an example, given that the plaintiffs win , but had to spend $250,000 to get a penalty payment of $616, or are leading to some probably foreseeable negative social consequences for the accused.

    On top of all that, the music industry is admitting that really, they are just looking for some money, not necessarily forestalling downloads. This may be because Internet disconnection is becoming a pretty severe, even draconian penalty, and few citizens are supportive of such measures as a response to alleged piracy. It's also unclear how enforcement regimes leading to disconnection will fare if the trend started by Finland, and followed up on by Germany and others, continues viz. Internet access as indispensable, maybe even as a human right. Shockingly, it's proving harder than expected to convince John Q. Public that enforcing statutorily granted monopoly rights justifies giving private companies like ISPs and the MPAA and RIAA the power to take away an essential human right without the intervention of a court or the law.

    It gets even better, though. In addition to targeting residential customers(but only those using BitTorrent?), the CCI's guidelines tragically affect businesses with free Wi-fi.
    How on earth is your local coffee-shop going to monitor the uses to which patrons put the free Wi-fi? They'll probably just have to stop offering it, for fear of lawsuits. So much for public Wi-fi, right? However, in what is perhaps in a bit of inadvertent truth-telling, the head of the CCI has stated that businesses , if they are "legitimate' (which appears to be code for "have lots of money to give us") will not be subject to the six-strikes rules. Of course, this merely demands the question, what if the "pirates" simply upgrade to business level accounts? It seems that the content industry/the ISPs have a price point whereby one may engage in illegal downloads at will, lending credence to those who criticize ‘six-strikes" as simply rent-seeking, rather than a genuine concern for copyright law. [Are those still distinct?]

    On top of all that, the company hired by CCI to monitor online activity,MarkMonitor, "which has developed a program designed to flag users who share copyrighted material on the peer-to-peer filesharing service BitTorrent.," has already been embarrassed in the course of its current monitoring activity, when, hired by HBO to enforce HBO's copyrighted material online, , it asked Google to remove around 4 million links, links that included the official HBO sites. Whoops.

    This kind of transcendently inaccurate error become all the more worrisome in light of stories like this one, wherein the entirety of a website's content on a particular topic was copied without permission and posted to a new site. The site in question, Retraction Watch, tracks the withdrawal or retraction of published academic papers. The copied content all had to do with one particular researcher, Anil Potti, who has been the subject of close scrutiny recently for falsifying aspects of his CV.

    The wholesale copying without attribution would be bad enough. But then the copiers, a site in India [with a UK-based owner, and possibly falsified content], filed a DMCA notice complaining that the originals violated their (that is, the copier's) rights. Given the "no questions asked" nature of the DMCA process, the original posts were immediately removed, although they are back up now after an outcry. The folks at Popehat have commented on the issue, and reference the Streisand Effect, seemingly intimating that that the filing of the takedown notice was not simply a foreigner trying to free ride re: content and take economic advantage, but rather someone, perhaps someone connected with Potti, using the DMCA as a tool for censorship of unfavorable opinions, but succeeding only in exacerbating the situation, from the perspective of negative publicity. Does hiring a reputation manager ever turn out well?

    After all of that, the news that Activision has filed a takedown complaint against the Government of North Korea for using material from Call of Duty: Modern Warfare 3 in a propaganda video seems almost tame.


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