Science Fiction Writers of America abuses the DMCA

I hope that Canadian copyright holders and copyright holder associations are watching what is happening in the USA with the ISP liability regime. It is important for anyone filing a DMCA takedown notice to realize that this is a legal document, and claiming you are the copyright holder for something you are not opens you up to legal liability.

Canada doesn't have a formal ISP liability regime at the moment, just the voluntary notice-and-notice that most major ISPs have taken on themselves. If Canada did have a US-style regime, then Canadian copyright holders filing notices could be legally liable in the same way SFWA is at the moment.

The moral of the story -- don't get too emotional, and make sure you collect evidence before sending out an official notice that material is infringing. Collecting evidence is quite easy and isn't expensive, compared to the expense of launching a lawsuit (What CRIA lost already due to lack of evidence) or having lawsuits launched against you (for perjury in an incorrect notice).

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Illuminating the DMCA takedown mechanism

Update : I copied this comment into its own article.

This whole event is very interesting. I found very useful commentary on Cory Doctorow's blog and on Jerry Pournelle's website.

As with anything like this, it's very hard to figure out what the facts really are. Whether the site in question is a Napster for books, how many works were wrongly taken down, etc. On the other hand, it's very useful for understanding people's opinions of the DMCA takedown mechanism.

It's pretty clear that there are two groups of authors involved - those (like Doctorow) that want their works distributed as widely as possible and those (like Pournelle) who don't. It doesn't matter what you think of those choices - they're both using legitimate business models to earn an income. What's important is that it gives them a completely different perspective on DMCA takedown notices.

For the first group, a takedown mechanism is never going to help them and can easily hurt them. They'd never use one themselves but could have their works taken down by accidental (or deliberate) inclusion in a DMCA takedown notice.

For the second group, they see their works available to the world online against their wishes. Any takedown mechanism is always going to be too onerous for these people. What they really need is to be able to prevent it being posted in the first place ! They're thinking that every hour their work remains online is another thousand permanently lost sales.

So a takedown mechanism has to balance the interests of these two groups, and is inevitably going to leave both unhappy.

The DMCA itself has a "notice and takedown" mechanism whereby you can send an ISP notice that your copyright is infringed by a page and they have to take it down more-or-less immediately. There's an appeal mechanism that can lead to the page being reinstated 10 days later.

The first group complain that this can be abused to take down criticism, unfavourable reviews, or even to take a competitor's website offline for a while. The DMCA does include penalties for misuse, but to date they have very rarely been imposed (and of course by then the harm has been done).

On the other hand, the second group have to first find out that their work is online against their wishes, find out who to send the DMCA notice to, jump though a number of legal hoops regarding format and wording, and then do the whole thing again for the next website. They see permanent damage from a work being online even for a short while.

So both groups are unhappy with the DMCA as it stands but for opposite reasons.

So are there any more fundamental principles we can use ? I think so. The rights of copyright holders have to sit alongside rights like freedom of expression and the right of presumption of innocence. We also have to look at the level of damage to the two groups of various schemes.

How much harm did Doctorow suffer in this particular case ? Very little. This wasn't the only place his work was online, and it was put back pretty quickly. Could it be worse ? Absolutely, particularly for time-sensitive information. Take down a critical movie review for the first ten days after the movie comes out and you might as well take it down forever. Kill off a competitor's "Boxing Week Sale" webpage for a week. There's certainly the potential for significant damage.

What about Pournelle ? He found that lots of his works had been online for some unspecified length of time, and he sells the rights to publish his works electronically, so there's certainly harm there. While I can certainly see the argument that there's more harm here than in the former case, the problem I have is that once somebody has an electronic copy and the intent to distribute it, there's absolutely nothing you can do. It's going to get to all the people who want a copy without paying for it sooner or later, by email, CD, p2p, bittorrent or from a website. This is whack-a-mole at its finest. We've seen this time and time again.

So that's why I come down on the side of a notice-and-notice system. With reasonable timeframes, infringements can still be dealt with quickly (most infringers will take works down on receiving a notice), but it avoids the problems of misuse of a notice-and-takedown mechanism. It's also more in keeping with our constitutional values.

For the second group of authors, I'd encourage them to go after the people who are creating the illegal electronic copies in the first place, because the only way to stop something spreading through the internet is to prevent it getting there in the first place. Difficult ? Certainly, but no harder than identifying everywhere a work appears online on an ongoing basis.