
The $105 Fix That Could Protect You From Copyright-Troll Lawsuits - gosuri
http://www.wired.com/threatlevel/2010/10/dmca-righthaven-loophole/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wired%2Findex+%28Wired%3A+Index+3+%28Top+Stories+2%29%29
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blantonl
Mailing a form with $105 to "Copyright RRP" with a PO Box in DC seems pretty
sketchy.

Second, is this _really_ an issue that online communities need to address? In
our site's terms and conditions, we clearly list a DCMA contact and registered
agent. Is that not enough?

And who are these funds going to? A government agency? A contractor?

As I said, on the surface this seems pretty sketchy.

~~~
gosuri
The PDF is at "copyright.gov". Moreover, check out
<http://www.copyright.gov/onlinesp/> the P.O. Box 71537 matches. What's the
"sketchy" part here?

If you get sued by a copy-right troller, you have the option of hiring a
lawyer to defend your "Terms of Service" or pay $105 and avoid the headache.

~~~
smarterchild
Is this something you can do after being sued?

~~~
qeorge
No.

Think of it like this: if your dog bites someone today, keeping the dog on a
leash in the future won't help you now.

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noonespecial
This seems like a monster profit center for future government. Just set up the
laws so that you have to look up and pay dozens of little fees in order to
have the law protect you from trolls. The trolls are incentivized to troll,
you are pressured to pay up, and the government just sits back and watches the
money roll in.

~~~
_delirium
They're often used essentially as an "only applies to big companies" trick.
Big companies running sites like YouTube are worried about liability, so push
for a safe-harbor bill; other big companies owning large media portfolios are
worried about the effects of a safe-harbor bill.

One possible compromise: pass a safe-harbor bill that only applies to big
companies like YouTube, while still leaving smaller operators, like
individuals running forums, liable for infringement. It's hard to pass
something like that directly, so one proxy is to require some registration
nonsense that will be trivial for any significantly sized company to comply
with, but means that the provisions don't apply to smaller operations.

~~~
caf
I like your healthy cynicism, but if that's the case, then why isn't the fee
something like $2000? That's still trivial for YouTube, but pretty steep for
some independent forum site.

~~~
loup-vaillant
$2000 would be too obvious, and can't reasonably be linked to real bookkeeping
costs. Anyway, even a smaller amount would do the job. Even at $10, people
will tend to take the default path, which is not doing anything (meaning, not
register).

Big companies, thanks to their legal teams, know how to behave. Small ones (or
individuals, or non-profits), might not.

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chaosmachine
_“The idea is you need to make it easy for copyright owners to locate who you
send infringement notices to,” he says. “They shouldn’t have to go hunting
around.”_ "

It seems to me that including a "DMCA takedown request" link in your footer
should be good enough, but IANAL..

Also, since I'm quoting this article, perhaps HN should have one ;)

~~~
A1kmm
To quote the exact law: "The limitations on liability established in this
subsection apply to a service provider only if the service provider has
designated an agent to receive notifications of claimed infringement described
in paragraph (3), by making available through its service, including on its
website in a location accessible to the public, and by providing to the
Copyright Office, substantially the following information"

IANAL, but it looks like it is not enough to put it in the footer if you don't
_also_ give the information to the Copyright office.

~~~
starkness
Exactly. That's what this is all about -- an issue of a technicality where
people did not pay the fee and register an agent with the copyright office,
even if they did have a link in the footer.

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alanthonyc
A few questions:

1 - If I have a blog on Posterous, is it they who need to do this, or I?

2 - From the form: who is the "Service Provider"?

3 - From the form: who is the "Agent Designated to Receive Notification of
Claimed Infringement"?

Some of these might be obvious, but I'd rather not screw up a legal form.

~~~
qeorge
(IANAL)

1 - Posterous, if you're on their subdomain

2 - The business, e.g., Posterous, Inc.

3 - An employee who takes on this responsibility. Posterous' is Sachin
Agarwal, their CEO.

Here's Posterous' completed form:

<http://www.copyright.gov/onlinesp/agents/p/poste.pdf>

~~~
jackowayed
1 - What if you're not on their subdomain? I have a Posterous blog and a blog
on GitHub Pages, both of which have comments. Am I liable if I don't send the
government a $105 check?

If so, I might take a page out of Kyle Neath's book and make people email me
if they want to comment: <http://warpspire.com/ask/>

~~~
qeorge
I don't think it matters legally, but practically, they'll probably go after
whoever owns the domain (or whoever looks like the biggest target).

What's legal doesn't really matter though, as $105 is far cheaper than any
lawsuit - even one you'd definitely win. So if you're at all worried, I'd
cover your bases.

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dhechols
So...effectively does everyone need to pay $105 to start any sort of website?

Seems like a barrier to entry to me...

~~~
blantonl
If your site plans to host user generated content, then it appears that this
is something you'll want to address.

Not to mention an insurance policy that covers you in other various types of
claims that can occur if you host lots of user generated content.

~~~
techbio
First mention I have heard of this kind of insurance need. More please?

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dejb
I wonder if this applies to sites from outside the US? Or is being overseas
protection enough from this sort of trolling?

~~~
Natsu
IANAL, but cases involving that have been in the news a lot.

* Not being in the USA won't stop people from sending you bogus DMCA notices. Some places will honor them even if they don't necessarily have to.

* They can still sue. I remember one spam blocklist that got sued, in spite of being in the UK. But they had some volunteer or something (?) in the USA... allegedly. The judge entered a default judgment against them (nobody showed up) and they actually ended up hiring a lawyer in the end.

* Unless you really do have US assets, they probably can't do much, but that doesn't mean they won't try.

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starkness
What strikes me as ridiculous is that you can't fill out a form online and pay
electronically. But then again this is the US government. There should be some
kind of amnesty for those that do pay the fee now, so as to avoid this kind of
trolling.

The funny thing is that this law is on the whole favorable to innovators, in
that if you do abide by the requirements, you'll have the safe harbor from
getting sued. If Viacom had its way, the law either wouldn't exist (thereby
exposing hosts to all sorts of potential liability for the infringements of
users) or it would require things like proactive filtering using
fingerprinting technology. Thankfully, they have not prevailed in their
lawsuit against YouTube.

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vegai
Protection money. Really, America?

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parbo
Or you could host your service in a sane country.

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pizzaman
Does anybody know how this works for Europe? Going through the list at
<http://www.copyright.gov/onlinesp/list/a_agents.html> I see European
companies, but isn't the DCMA only a US thingy?

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ams6110
Seems that for a company like Righthaven there would be a pretty strong
motivation to just find blogs that don't have a DMCA agent registration, post
some copyrighted material in a comment area, and then sue.

I would hope that anyone who found themselves on the receiving end of such a
lawsuit would do a little bit of detective work on the origin of the
infringing content.

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stellar678
I wonder if you could sign up as a 'registered DMCA agent' and then provide a
service to be the contact point for anyone who signed up with you. Some kind
of app that simply received and forwarded messages to the appropriate parties.
It would need to be thorough about keeping delivery/receipt records, but it
seems pretty simple. Maybe a Kickstarter-worthy project!

~~~
defen
IANAL, but I'd be worried that you would then be responsible (i.e. sue-able)
if the actual responsible party did not take down the infringing content after
you forwarded the notification.

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troymc
If comments on my site are handled by Disqus, is it they who have to mail this
form and $105, or me?

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patrickgzill
I wish I knew a little more about the law, but it seems to me that requiring
payment in order to exercise your rights under the law is just not proper.

Basically the DMCA is saying that you cannot have protection under this part
of law unless you pay money to them... if you sent them a letter, certified
mail, informing them of your contact information, but did not include payment,
they couldn't claim that you didn't notify them.

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tibbon
If I setup my home wifi as a 'private internet cafe', register this form/fee
and agree to comply with takedowns of copyright material that 'users' may or
may not share on our network (hey its not my fault I 'accidentally' lost all
my user logs), then does that shield potential torrenting activities?

Seems like a neat loophole to test.

~~~
heyrhett
The burden of proof in a civil lawsuit is "more likely than not". So, if they
can convince a jury that since the internet was registered to _you_ in _your
home_ , that you were 51% likely to be the one knowingly and willfully
distributing copyrighted material, you lose.

I wouldn't want to be the first one to test that loophole.

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ez77
Somewhat related, how is proof of authorship demonstrated if the author
decides to dedicate it to the public domain or something less restrictive than
copyright? Is, for instance, archive.org considered legitimate evidence that
"on day X you had published Y"? Any similar options?

~~~
krf
The Writer's Guild offers a script registration service to help with proving
authorship of scripts, and there are for-profit services too:
www.protectrite.com and www.nrs-online.com (there are probably others, but I
am involved with NRS so I know that one, and ProtectRite has been around
probably the longest).

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armandososa
So, in how many years do you think copyright-trolls and patent-trolls will
finally kill the internet?

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kennethh
The goverment should be there to protect its citizen and provide a framework
for justice without fees. This fee does not provide any form of function
except being an income source for the government and lawyers and a tax on the
people wanting to produce and invent.

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makeramen
I find it ridiculous that this is happening. There is too much incentive for
people to sue each other these days, and too often it's whoever is willing to
pay the court fees that wins. This is a huge problem for small businesses and
bootstrapped entrepreneurs.

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lhnn
Does no-one in the legal system see the injustice of current copyright law?

\---- Other idea:

If I owned a blog hosting website, could I register as the DMCA contact point
for $105, and cover all blogs I host AS WELL AS THEIR POSTS?

I could start up pressword.com, host 10,000 blogs with user comments, and
charge each blogger $10 for 'legal fees'.

~~~
jemfinch
> Does no-one in the legal system see the injustice of current copyright law?

See it? They're leveraging it for personal gain!

