Well, interesting.

So I was tottering along today, commenting in communities like I’ve a wont to do, when lo and behold I get involved in a discussion of how the DMCA is implemented at LiveJournal. And it just makes me stop and thinkg, “… buh?”

Here’s the deal, if I serve LiveJournal with a properly formatted DMCA takedown notice, they then pass that information onto the infringing user. Two options are essentially presented; take down the content, or file a counter-claim. Easy, right?

There’s a problem. See, the thing is, LiveJournal doesn’t screen notices for ‘reasonableness’. So, say I was being a prat and I decided to file a notice against randomredux for that post the other day where he used some of my artwork to create faux DS and Wii game covers. Now, the legal legitimacy of me doing this is pretty much zilch (even discounting my after-the-fact approval), since my art isn’t commercialised and I can’t really prove damages in this situation. So even though it is technically a breach of copyright, randomredux is pretty safe since the claim is so petty it’s highly unlikely I could get a court to hear it.

But LiveJournal will. So long as my takedown notice is formatted to a standard that complies with section 512(c) of the Copyright Act (one assumes that’s the US act; nice implicit assumption, LJ). In case you were a bit unclear on this, LiveJournal provides a handy check-list. There’s also a check-list for how to file a counter-claim, but note that it’s significantly harder to file a counter-claim than it is to file and claim. The main point behind the filing of claims and counter-claims, incidentally, is so that LiveJournal can keep its status as a “safe harbour” under the DMCA. By removing access to content and acting on the initial claim, LJ absolves itself from liability from the party filing the complaint. By allowing a counter-claim, it absolves liability from its users. Is LJ allowed to judge the validity of a claim? I don’t know, but I assume that if it does it opens itself up to liability in any subsequent legal action. Net result: It’s easier for LJ not to make validity judgement on any claims at all, just enforce the DMCA and pass on the message.

My problem isn’t so much with this. Okay, I think the DMCA is a prime example of Bad Law, and I resent the implication that I might be subjected to it (not being a US citizen and all). But copyright is copyright and the law is the law.

No, my main problem here is with the way LiveJournal presents options; take the content down, or counter-claim. And what it doesn’t mention is that by taking the content down you are admitting to guilt. Never mind the legitimacy of the claim in the first place.

Thing is, if you get a couple of takedowns and you, trying to being a good kid, comply, LiveJournal can then deem you to be a “serial infringer” and banninate your ass.

Are you smelling what I’m smelling, dear reader?

Because what I’m smelling is a situation — similar to the one that started this discussion — where someone gets a vendetta against a user or community. User or community has posed, say, quotes from Captain Vendetta’s blog posts or comments. Now, these are technically covered by copyright as published materials, so Captain Vendetta files DMCA notices against everyone she finds ‘plagiarising’ her words. LiveJournal doesn’t do any assessment on validity, so serves notices against the targeted user/community. User/community decides fighting is too much wank, so takes the content down, thereby admitting guilt in LiveJournal’s eyes, and getting their accounts one step closer to bannination without ever having done anything wrong.

Yeah, you heard that one right, kids; the system (that is, LJ’s system) is set up so the onus of proof of innocence falls on the user. Even better, LiveJournal isn’t exactly vocal about the fact that it treats compliance with notices as an admission of guilt. In fact, I can’t actually find it stated explicitly anywhere (though it’s implied by the page linked above, as well as several places in the FAQ), and it’s certainly not included in the notice LJ Abuse sends off the users who’ve had DMCA claims filed against them. It’s also interesting to note that in its rush to absolve itself under US law, LJ doesn’t take into account the jurisdictions of the parties who are actually involved; what if one or both of them fall outside of the US, and therefore aren’t subject to the DMCA and US copyright law? It gets kinda wonky here since by agreeing to use LJ’s service you effectively submit yourself to US law when dealing with it, but when LJ writes itself out of the picture… then what?

And you know the really weird thing? Considering the wank that goes on at the drop of an LJ-hat, this interesting legal titbit seems to’ve thrown up exactly zero comment.

Anyway, the take-home message from this whole incident? Never comply with DMCA take-down notices served to you by LJ. Nice use of the law, there, eh?

Edit

Edited a couple of passages for clarification and pro learning. Mostly to remove references to fair use and make LJ’s requirements under the DMCA clearer. Also removed one reference to criminal law; I used to think that certain types of widescale IP-related fraud fell in a criminal rather than civil jurisdiction, but now I’m not sure. The net complaint is the same, now hopefully it won’t get a lost in the nitpicking details…

Comment?

This post has been mirrored from void-star.net β. You may comment there using your LiveJournal/Dreamwidth/OpenID URL instead of an email address. Randoms and lurkers are more than welcome.