DMCA takedowns of networks

Sat Oct 24 15:20:51 UTC 2009

On Sat, Oct 24, 2009 at 11:06:29AM -0400, Patrick W. Gilmore wrote:
> On Oct 24, 2009, at 10:53 AM, Richard A Steenbergen wrote:
>> On Sat, Oct 24, 2009 at 09:36:05AM -0400, Patrick W. Gilmore wrote:
>>> On Oct 24, 2009, at 9:28 AM, Jeffrey Lyon wrote:
>>>
>>>> Outside of child pornography there is no content that I would ever
>>>> consider censoring without a court order nor would I ever purchase
>>>> transit from a company that engages in this type of behavior.
>>>
>>> A DMCA takedown order has the force of law.

It most certainly does not.

>> The DMCA defines a process by which copyright violations can be
>> handled. One of the options in that process is to send a
>> counter-notice to the takedown notice.
>
> Laws frequently have multiple options for compliance.  Doesn't mean you 
> don't have to follow the law.

But you should understand the law.

The DMCA does NOT require that any provider, anywhere, ever, take down
material because they were notified that the material is infringing on
a copyright holder's rights.

What the DMCA does say is that if a provider receives such a
notification, and promptly takes down the material, then the ISP is
immune from being held liable for the infringement.  Many providers
routinely take down material when they receive a DMCA take-down notice. 
But if they do so out of the belief that they are required to do so,
they are confused.  They are not required to do so.  They can choose to
take it down in exchange for getting the benefit of immunity from being
sued (many, probably most, providers make this choice).  Or they can
choose to leave it up, which leaves them vulnerable to a lawsuit by the
copyright holder.  (In such a lawsuit, they copyright holder would have
to prove that infringement occurred and that the provider is liable for
it.)

(I'm not commenting on the merits of HE's actions here.  Just on that
the DMCA actually says.  It's certainly a good practice for providers
that don't want to spend time evaluating copyright claims and defending
copyright infringement suits (which, I think, is most providers) to
take advantage of the DMCAs safe-harbor provisions.  I'm not disputing
that.)

     -- Brett