

How I Learned to Love the DMCA - galenward
http://blog.estately.com/2012/04/how-i-learned-to-love-the-dmca/

======
ajross
To clarify: the linked post is bout the DMCA safe harbor rules about takedown
notices. This really isn't the bad part of the law. It can be argued that the
takedowns are too easy to do and that they are honored too quickly by site
administrators, that they are susceptible to automation and false positives,
etc... But really that's not a huge deal.

Where the DMCA is widely reviled is in its other parts, most particularly the
anti-circumvention provisions that, when the law was drafted, made things like
security research or reflashing a consumer device _criminal acts_ (c.f. the
Skylarov case). It should be noted that this nonsense, while it's still in the
law, has been significantly dilluted by a bunch of regulatory exemptions
enacted by the executive branch.

~~~
WiseWeasel
It's still illegal under the DMCA to back up your own DVD/BluRay, or
distribute the tools to do so, which is a load of crap.

~~~
nsmartt
Actually, at present, backing up your own DVD is exempted.

~~~
ajross
There's a partial of list exemptions here:

[http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Ac...](http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Anti-
circumvention_exemptions)

I was wrong, by the way: it turns out that it's the librarian of congress and
not the executive branch that has the power to do this regulation. That's
probably more stable and less likely to be walked back, which is good.

My read is that a simple backup is _not_ exempted though. You need to be
breaking the CSS encryption for the purpose of making a fair use distribution.
Obviously IANAL, you should read the law, yada yada yada.

~~~
nsmartt
Oh, oops. I think my (months) younger self must have misunderstood due to
wording.

>Persons making noninfringing uses of the following six classes of works will
not be subject to the prohibition against circumventing access controls (17
U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.

>Motion pictures on DVDs that are lawfully made and acquired and that are
protected...

I must have drawn my conclusion hastily. I think I also read it expecting to
find that it _was_ legal, since I've seen comments on HN, in the past,
claiming it to be. Thanks a lot (not sarcasm).

------
scottporad
The screenshots in this post are fantastic.

To me, the real LOL part of this was the image sprite...Sutton didn't even
bother to change the name of the file! Just shows that they were totally
thumbing their nose at Estately and the law.

Here's the screenshot of that: [http://blog.estately.com/assets/Estately-
images-on-Sutton_s-...](http://blog.estately.com/assets/Estately-images-on-
Sutton_s-server-including-URLs-4.jpg).

------
nsmartt
>learned to love the DMCA

This is a terrible title, and "I was thankful for one benefit of DMCA" is not
the same as "I love DMCA."

I hope they don't really believe the DMCA is a wonderful thing just because it
was beneficial to them in this one instance. I realize they pointed out that
it has some horrible parts, but I get the feeling they don't feel that any
reform is necessary.

Copyright reform is only becoming _more_ necessary as time goes on.

~~~
tikhonj
Maybe it's an allusion to _Dr. Strangelove_? That's what I thought of first
when I read it.

------
sp332
I really don't think this is a good idea. If they don't respond to the cease
and desist, get the court and law enforcement to _enforce_ the C&D. Don't
pretend that due process of law doesn't exist.

~~~
galenward
That was (and may still be) the next step. Why isn't this a good idea also?

~~~
sp332
Since Amazon is hosting the content, they could be held liable for ALL cases
of copyright infringement on their servers. In order to avoid this, the DMCA
has a provision that, if you respond to takedown requests, you get "safe
harbor" and your customer, who actually did the infringing using your service
is now liable. That basically means that Amazon can't appeal the takedown
request. They _must_ take down the content before appealing, or they expose
themselves to tons of liability. I don't think this system of scaring hosting
sites into being content owners' personal executioners is a good idea.
Specifically, there is no judicial oversight, no evidence required, no actual
law enforcement agencies involved, etc.

~~~
elehack
That's why DMCA takedown notices must be filed with an assertion, under
penalty of perjury, that the request is legit (requestor is authorized to
issue it, it is an infringement, etc).

Not perfect, but it does make a pretty big disincentive to being caught
issuing fraudulent takedown notices.

~~~
gue5t
Doesn't the evidence that fraudulent takedown notices are still issued, even
in bulk and via automated systems clearly indicate this isn't a significant
enough disincentive?

For example, according to
<[http://www.techdirt.com/articles/20090315/2033134126.shtml&#...](http://www.techdirt.com/articles/20090315/2033134126.shtml>),
Google has stated that 37% of the takedown requests they receive are
fraudulent.

edit: Why does Hacker News not support <scheme://path> (with brackets) syntax?
It's nothing new.

~~~
sp332
Anything starting with "<http://> " will be turned into a hyperlink. You don't
need the "<>".

------
smashing
The DMCA is a tool which mean it has good Use Cases and bad ones, too. This is
an example of one of the good ones.

------
waterlesscloud
Why it's almost as if protecting IP rights actually _is_ important to startups
and developers.

~~~
J3L2404
Thank you.

------
GigabyteCoin
They "currently have the search portion of our website offline for updates".
So that's what that means.

------
daryn
now there's a headline I never thought I'd see on a startup blog! :)

------
ktizo
How is it a good thing in general that you got an infringing site taken down
based on your word without it going through some sort of public oversight
before removal?

This kind of thing makes the US horribly dangerous to internet businesses and
now that you have done it to a much bigger shark than yourself, they will be
gunning for you.

Imagine it the other way around, perhaps on something much more innocuous that
is easy to miss. Would you rather a court case to decide an appropriate action
against you, or your site ripped off the net, requiring you to then go to
court to get it reinstated?

The speed that was so helpful to you as a startup in this instance is what
will leave you dead in the water if you mess up, even accidentally, in the
future (I am not suggesting that what was done to you was accidental, although
many of their management may not have understood the details).

~~~
dangrossman
> your site ripped off the net, requiring you to then go to court to get it
> reinstated

Getting your site reinstated is as easy as the other person having it taken
down: a one-page counter-notice sent to the same contact at the service
provider attesting that you are not infringing the other person's copyright.

For the service provider to have "safe harbor" from liability, they must also
put your content back up just as quickly as they took it down. Now the other
party has to actually take you to court to take your content down again.

~~~
comex
The service provider actually has to wait 10 days before reinstating the
content.

~~~
ktizo
More than enough time for the profit margin of a startup's customers to walk
off then.

~~~
dangrossman
Though, if it's significant enough, you can recover. If the copyright holder
misrepresented their claims, they are liable for the damages that resulted
from the improper removal of the content. Those damages would include your
lost customers.

