KatsBits Community

General Category => Blog => Topic started by: kat on September 28, 2015, 11:57:52 PM

Title: DMCA and its Failings
Post by: kat on September 28, 2015, 11:57:52 PM
Contrary to the title, DMCA is a relatively robust set of rules (http://www.katsbits.com/smforum/index.php?topic=514.0). They fail generally through abuse and misuse. Or because people don't quite understand them. Or due to of corporate apathy. They fail because people (both individuals and Corporation) look to short cuts, using a "least effort possible" approach to dealing with complex issues arising from Copyright compliance.

The principle behind DMCA is pretty simple though; a person finds their work being misappropriated and files a "Take Down Notice". The content hosting company upon receipt of this notice removes the offending item whilst a back and forth between parties ensues, culminating, usually, in the item being removed permanently, or it being restored. Usually, either/or outcome is where it ends.

There's a flaw with this very simple process however (some might say one of many flaws), in that it necessitates the original author be able to physically inspect the potentially offending item to avoid inculcating themselves of the liabilities associated with filing Notices knowingly to be in error (filing 'false' DMCA's). In other words, if the item can be viewed, great. If not, because it may be hidden behind a paywall or simply as part of the way a given service offering is provided, it becomes a serious problem because DMCA makes no provision for such scenarios; service providers/hosts are not under any specific obligations where DMCA rules are concerned to allow access to hidden content for the purposes of confirming an infringement, which they would argue ostensibly prevents bad-faith actors 'fishing' for claims to make.

So whilst a service paying customer (member or subscriber of a paid for service) might notify the original author of a potential problem (for example contacting the original author of a character model seen on another site/service 'hidden' behind a paywall), if said author is not also a paying customer its then a challenging to say the least, to persuade the provider/host to allow access - after-all who might this supposed 'author' requesting access be in such situations except some sort of freeloader using DMCA to get something for nothing.

This is a position many a User Generated Content creators might otherwise find themselves in (http://www.katsbits.com/smforum/index.php?topic=593.0) - being notified of a possible infringement they won't ordinarily able to verify, especially where games, products and services allow their users to upload content are concerned. Basically if something is 'stolen', uploaded and hidden (for whatever reason), the original author is essentially locked out from proper remedy of the situation... unless they're willing to risk filing false DMCA Notices (this may seem like a low risk action but its not - never, ever file a Notice knowing it to be false or inaccurate (http://www.katsbits.com/smforum/index.php?topic=521.0), DMCA Notices, being legal documents, are kept, which establishes a 'record of activity' based on filings and outcomes, information that can be inspected by anyone, and which might reveal a pattern of erroneous submissions that would subsequent undermine legitimate claims - notwithstanding it being Perjury to file falsely).

Whilst most company's take a reasonably pragmatic approach to hidden items, allowing access when enough identifying DMCA and user information is provided (data that would be used solely to verify who the requesting party was, and the items suspected, not to service an actual Notice request). Others don't. Needless to say it's these latter groups that gum up the DMCA works for everyone */me looks intently in IMVU's direction.
Title: Comment of the Effectiveness of DMCA
Post by: kat on April 02, 2016, 08:59:04 AM
US Copyright Office closed its call for Comment on the effectiveness of DMCA (https://www.regulations.gov/#!documentDetail;D=COLC-2015-0013-0002) (Section 512 Study: Comment of the Effectiveness of DMCA (http://www.copyright.gov/policy/section512/comment-submission/)) in relation to remedial actions - how effective it is at dealing with infringement. Whereas most seem to take an anti-corporate approach to their complaints, which seem conspiratorial, comment was submitted on-behalf-of KatsBits members and individuals whom have discussed problems faced in relation to DMCA use as it stands, especially as they relate to DMCA abuse through false or malicious Claims (vexatious litigation) and privacy ("doxing"). Read the submission below (requires Adobe Reader (https://get.adobe.com/reader/) browser plugin or similar PDF reader).

[EDIT] Submitted comments listing/docket (https://www.regulations.gov/#!docketBrowser;rpp=25;so=ASC;sb=title;po=0;dct=PS;D=COLC-2015-0013;refD=COLC-2015-0013-0002).

Further Reading
- I got a DMCA 'take-down' Notice, what do I do? (http://www.katsbits.com/smforum/index.php?topic=514.0)
- Fan Art and Copyright Infringement (http://www.katsbits.com/smforum/index.php?topic=593.0)
- Are DMCA Protection websites scams? (http://www.katsbits.com/smforum/index.php?topic=521.0)