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D, M C A

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It just occurred to me that it would be fun to write a filk titled "DMCA," to the tune of "YMCA." Turns out, of course, that someone's done it already: karaoke DMCA video, by the Pillage People. Sadly, I don't know the original well enough to tell how well this scans, but it looks like fun.

Anyway. As I noted in my previous entry, on Saturday I tried to get Wordpress to remove a blog entry that was a copy-and-paste copy of one of my journal entries. They told me I would have to file a DMCA takedown notice.

I responded:

I loathe and detest the DMCA; I think it's a terrible law, and a much-too-big club to use for a small and obvious infringement issue, and I really hate to participate in legitimizing it by sending a DMCA takedown notice; this is the first time I've ever done so.

But I didn't feel like I had much choice. The infringing blog was a pseudonymous one, with no legitimate-looking content and no author-contact info; I did post a comment there asking the author to remove the content, but it seemed unlikely to me that that would have any effect. So I went ahead with the DMCA notice.

I should add that I was exaggerating and oversimplifying in my abovequoted comment; I do think it's perfectly legitimate and a good idea for copyright owners to send DMCA notices when necessary (though I'm happier when informal channels work, and I'd be happier still if the DMCA were replaced with a better law), and I know that one of you in particular has used them fairly often, for purposes I consider completely reasonable. And I'm sure it makes sense for a company that hosts content to want to have a process, and thus to require DMCA notices for significant or complicated or ambiguous infringement cases.

But for a single blog entry, in an extremely obvious case of blatant copy-and-pasting, it seems like massive overkill. Normally, in fact, I wouldn't involve the host at all--in my experience, most cases of people copying content are people who don't understand about copyright and who think they're doing the creator a favor by distributing their work further. (In some cases, the creator agrees with them, in which case there's no conflict and everything's copacetic.) In the cases where someone has copied something without knowing any better, in my experience the copier is almost always very willing to respond to a polite request by taking down the problem content. I like to think that in most contexts, people are happy to respond to reasonable requests with reasonable actions and/or reasonable discussions; in that kind of situation, invoking the DMCA only makes everyone tense and twitchy and upset.

But that was clearly not what was going on in this particular instance. I don't know what was going on, but it was very obviously not just a fan who wanted to spread my amazing work to a wider audience. I jumped to the conclusion (perhaps incorrectly, dunno) that this was a blog that was preparing to turn into a splog, because I couldn't see any other reason for them to copy that entry, and because a lot of my content (mostly only a paragraph at a time, which isn't worth my time to do anything about) has been turning up in splogs lately. But I don't know for sure.

. . . The other reason I'm reluctant to use DMCA notices myself is that they've been used too often for reasons that I'm politically unhappy with, in ways that I consider to be against the public interest. So when a hip web company requires a DMCA takedown notice before being willing to act, it makes me feel like they're implicitly criticizing copyright holders, implicitly saying "we don't believe you really have a right to do this, so we're going to make you jump through bureaucratic hoops to make it harder for you." Which makes me defensive and gets my back up, even if I'm just imagining the criticism.

In some cases, such as my employers, they even have a habit of posting the notice to Chilling Effects, which is great in situations where the DMCA's being used against the public interest, but really annoying in cases where it's being used to legitimately and reasonably protect commercially valuable content (that's commercially available for a reasonable price) from copyright infringement.

Yes, I realize that the line between those two kinds of situations is an extremely vague one, and that no two people probably draw it in the same place, and I realize that the implicit criticism I'm seeing is probably all in my head; nonetheless, being told that I needed to file a DMCA notice really bugged me (obviously).

But I did it anyway.

The problem blog is still up, but it's a weekend; I'll wait another day or two and see what happens before doing anything more.

I imagine that some of y'all will say, "Well, you could have gone in the other direction, and put a CC license on your blog, and then it would be fine for the person to have copied your entry." I'm still uncertain whether I want to CC-license my blog (especially since, iIrc, the CC people have deprecated the one CC license I was especially interested in). But even if my blog were CC-licensed, I would've been unhappy with the approach used in this particular case. For one thing, it was a bad copy--removing the formatting and links made it near-unreadable. For another thing, all CC licenses require attribution, and this copy wasn't attributed.

8 Comments

I suspect that they go the legal route because it is "safe". If they were to take something down just on your say-so they might get sued. If they insist you go through due process then they have covered their backsides. It is a sorry world that we live in.


There are a lot of blogs out there that are used for... who knows what strange nefarious purpose really, but basically just steal blog posts from elsewhere to make themselves seem legit. I presume they're there for pushing up Google PageRank scores by linking somewhere.

Still annoying to have your post stolen!


At least there's some hope that Wordpress will honor the takedown notice. MIT often passively ignores DMCA notices, in my experience. Their designated agent often doesn't reply and fails to remove infringing material.

I'm often dealing with illegal copying outside the US, so I can't just rely on DMCA notices. But even within the US, I hate sending DMCA notices, and usually try informal avenues first. Aside from MIT, I've had good success encouraging real people to act appropriately. So far, no splogs I've needed to deal with.

Coincidentally, I read a very interesting post last night about asking for permission vs. assuming you won't get noticed, looking at some of this from the point of view of a thoughtful copier:
http://bibliodyssey.blogspot.com/2008/03/permission-unpossible-i.html


Jed-

I'm not a big proponent of the DMCA, however, with that said, having once served as the DMCA contact for Linden Lab/Second Life, I think I have a reasonably good handle on it.

Cheryl is right. Wordpress is trying to play the same delicate balance that ISP's, MMO's and other hosting services are in the anonymous world of the internet. Since there is no effective way for you to currently prove your identity over the net (unless someone installed a bar code on my person when I was asleep, something I certainly didn't agree to,) lawyers came up with the idea that, if you submit a legal document (i.e. a DMCA takedown notice,) with your signature on it, it provides the recipient with a certain blanket of legal protection that the person who sent the notice is, in fact, the copyright holder. I suspect a lot of that portion of the DMCA came out due to the sex.com domain transfer years ago (if you're unaware, the person who had the precience of mind to register that domain, had it stolen out from under him by someone who sent the domain registrar a fake change of ownership and they didn't perform due diligence, instead just transferring it over. That little error in judgement cost Verisign well over 15 million dollars in pre-trial settlement because they knew they would lose big time.)

So, does that mean the DMCA is good legislation? In my eyes, not at all. My perception is, the DMCA is not about protecting copyright holders, but rather protecting the business of copyright and to provide protection to people who host copywright materials. It is legislation designed to "stimulate business" and not actually provide protection to the people who's work is being stolen.


Thanks for the comments!

Cheryl and Colin: Yeah, it makes sense that organizations require DMCA notices as a legal CYA technique, and in some contexts that doesn't bother me. It's certainly much simpler to require a DMCA notice than to try to figure out, in a complicated situation, who's legally right; and there are many complicated situations. What bugged me about this particular case was that the situation was very clearcut and straightforward; it would've been 100% obvious to any observer that I was right, given about 30 seconds of examining each of the two pages. And if they had any remaining doubt, they could have dropped a note to the owner of the other blog.

To be fair, they may not have understood how clearcut/obvious this particular instance was; it's presumably simpler for them to just respond to all copyright-infringement queries with a DMCA-notice request, so I'm guessing they didn't even look at the situation in question. But I still found their response annoying. Especially because it wasn't trivial to find the abuse form that I originally filed, and I would never have found their send-us-a-DMCA-notice page on my own; I got the impression (perhaps entirely unjustified) that they would really rather not hear about it if their customers are infringing.

I'm curious: any of you happen to know whether "we received a notice of copyright infringement, but it wasn't an official DMCA takedown notice, so we ignored it" is a valid legal excuse? I would, of course, never actually take this kind of thing to court; just wondering what a court would say about it.

Michael: :( re MIT. Good point re copying outside the US, and I'm glad to hear that you too have had good results from informal approaches.

Interesting entry; thanks for the link. One thing that I didn't know about for a long time, that I suspect a lot of people doing small publishing projects would find useful if they knew about it, is the concept of a copyright clearinghouse; the prospect of doing my own clearances is so daunting that it's prevented me from embarking on a couple of projects, but a clearinghouse would make some things a lot easier.


Colin: With you all the way. DMCA is not good law. For example, there are honey trap sites out there that tempt people with what appear to be free icons, images, etc. But if you use those images on your web site because you didn't notice the terms of usage hidden away on the source site you quickly get hit with a huge bill and DMCA notification. Also there are people who use DMCA to try to get web hosts to take down sites that are critical of them. If you are foolish enough to write a negative blog post about someone and include a photograph that you don't have the copyright for then you could be in big trouble.

Jed: You may want to check out this book. It is mainly about reputation rather than copyright, but it is fascinating reading.

And actually it doesn't matter how obvious a case you have, if the legal department at WordPress.com has a set of procedures then the staff have to follow those procedures for all cases. You can't afford to have your staff making legal decisions by themselves.


As far as I know, hosts who fit the DMCA criteria are free to ignore all information other than proper take-down notices that follow all DMCA procedures and are from the copyright holder or their authorized agent. I'm all for safe harbors, but it's a terrible law.


I'm curious: any of you happen to know whether "we received a notice of copyright infringement, but it wasn't an official DMCA takedown notice, so we ignored it" is a valid legal excuse?
My immediate assumption (with no legal basis) would be "of course." The related question is whether "we received a notice of copyright infringement, and even though it wasn't an official DMCA takedown notice, we took it down" is a valid legal excuse. My assumption would be "probably not," though it would depend on the terms of service. (But I personally wouldn't want to deal with a host which would take the law into its own hands in that way.)

(I agree that the DMCA is a lousy law in all sorts of ways, but holding the hosts accountable for what their users post is precisely one of the things it gets wrong. A better law would have less of that, strengthening their common carrier status, rather than making the hosts more responsible for determining what speech is legal and what isn't.)


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