Re: DMCA takedowns of networks

[Joe Greco <jgreco () ns sol net>]

> On Oct 24, 2009, at 2:28 PM, Joe Greco wrote:
> > > Laws frequently have multiple options for compliance.  Doesn't mean
> > > you don't have to follow the law.
> >
> > A DMCA takedown notice isn't "law," Patrick, and does not have the  
> > "force
> > of law" claimed above.
>
> You say potato, I say whatever.  "In the field of law, the word force  
> has two main meanings: unlawful violence and lawful compulsion."  They  
> are lawfully compelling you to take down the content, or explain why  
> you should not. 

I think you need to read the DMCA.  You may feel free to point out
where it says "service provider must do X."  Because I suspect you
will find out that it _really_ says, "in order to retain safe harbor
protection, service provider must do X."

The latter is not lawfully compelling me to do anything.

> This is no different from many "legal" notices.  If  
> you ignore the notice, you risk legal ramifications, including the  
> loss of Safe Harbor defense.
>
> This pice of paper has the "force" of the US gov't behind it.  What  
> would you call "the force of law?"
>
> Feel free to believe otherwise.  IANAL (or even an ISP :), so maybe  
> I'm wrong.  But I'm not going to think poorly of any provider who  
> thinks otherwise.

I "believe" what the lawyers tell me.  They tell me that we may lose 
safe harbor if we do not comply with a takedown notice.  That's about 
all.

> > > > This seems like a very obvious case of parody/fair use,
> > >
> > > Possibly, but I do not blame a provider to not being willing to make
> > > that distinction.
> >
> > Yes, but it's troubling that a nontrivial provider of transit would  
> > make
> > such a mistake.  This is like Cogent, who, at one point, received a  
> > DMCA
> > (or possibly just abuse complaint) about content being posted  
> > through a
> > server of a client's, and who proceeded to try to null-route that  
> > Usenet
> > news server's address.
>
> [snip - bunch of stuff about Cogent]
>
> It is almost certainly not "like" anything.
>
> I'm guessing that you have no clue what actually happened.  People are  
> making assumptions from third-party accounts using 5th hand info.   
> Generalization is bad, generalization on such flimsy info is silly.
>
> Maybe they typo'ed a filter list.  Maybe some newbie over-reacted.   
> Maybe the customer did not pay their bill.  WE HAVE NO IDEA WHY THIS  
> HAPPENED.

Of course not.  But there are at least some of us who have been through
all of this; we can fill in the blanks and make some reasonable 
conclusions.

> > To be clear: I agree that a provider might not want to make a
> > distinction between a legitimate DMCA takedown and something that's
> > not, but it is reasonable to limit oneself to the things required by
> > the DMCA.  Null-routing a virtual web server's IP and interfering
> > with the operation of other services is probably overreaching, at
> > least as a first step.
>
> I have stated over & over that it is not right for HE to take down non- 
> infringing sites - _if_ that is what happened.
>
> So why are we having this discussion?
 
Because it appears that HE took down non-infringing sites?

Excuse me for stating the obvious.  :-)
 
... JG
-- 
Joe Greco - sol.net Network Services - Milwaukee, WI - http://www.sol.net
"We call it the 'one bite at the apple' rule. Give me one chance [and] then I
won't contact you again." - Direct Marketing Ass'n position on e-mail spam(CNN)
With 24 million small businesses in the US alone, that's way too many apples.