The $105 Fix That Could Protect You From Copyright-Troll Lawsuits

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

by gosuri • 16 years ago

176 52 16 years ago

wired.com

lhnn• 16 years ago

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'.

sabat• 16 years ago

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?

IANAL, but based on the fact that Youtube does this with one contact address for all their users, I would guess you could do that.

jemfinch• 16 years ago

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

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

anigbrowl• 16 years ago

Of course they do, but everyone in the political system seems a-OK with it. There may be a way to challenge current law on constitutional grounds, but it would be a very tough sell.

alanthonyc3• 16 years ago

The form says this:

"Additional $30 per group of 10 or fewer."

on the field: "Alternative Name of Service Provider."

kiba• 16 years ago

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

Current? Are you crazy? It's alway been unjust and it is alway been driven by special interests.

Even their origin is cursed! It was originally used to censor views that the royalty doesn't like.

However, it is my interest for copyright to be unjust as possible. Why? Because it drive business. If companies are suing their customers for piracy of their software, that mean more business for me. Everybody lose in lawsuits, except lawyers and copyfree businessmen like me.

Those who don't learn from history are doomed to repeat statement as if it were a new modern problem.

chc• 16 years ago

Or you could host all the blogs and charge each blogger $10 for "hosting fees." I don't really see how the idea is all that clever, either from a standpoint of getting rich or toying with the law. I'd assume the major blog-hosting companies are already safe-harbored up.

pbhjpbhj• 16 years ago

Perhaps you could register DMCAcontact and be the sole DMCA contact for anyone in your "network" (those who pay you $10). Why would domain name or even physical server be relevant.

You could literally make millions off this.

jerf• 16 years ago

Are you the person with the technical capability to swiftly remove content when notified by a content holder? That's what they are looking for here. A blog owner could register their own blog but the hosting service is really the more likely target for a DMCA takedown regardless.

blantonl3• 16 years ago

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• 16 years ago

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.

blantonl3• 16 years ago

Thanks gosuri. Succinctly answered.

smarterchild• 16 years ago

Is this something you can do after being sued?

dhechols• 16 years ago

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

Seems like a barrier to entry to me...

blantonl3• 16 years ago

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• 16 years ago

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

dejb• 16 years ago

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

starkness3• 16 years ago

Different countries have different laws regarding safe harbors for secondary copyright liability. But if you're operating overseas, it would be hard to pin you down with this DMCA issue unless you have employees, an office, etc. in the US.

Natsu• 16 years ago

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.

chaosmachine• 16 years ago

“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 ;)

A1kmm2• 16 years ago

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.

starkness3• 16 years ago

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.

alanthonyc3• 16 years ago

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.

qeorge3• 16 years ago

(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

alanthonyc3• 16 years ago

Thanks!

jackowayed• 16 years ago

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/

A1kmm2• 16 years ago

IANAL, but as I understand the law, the 'service provider' who registers is the one who is protected.

Posterous is providing you and anyone who comments on your blog a service - they can register to protect themselves.

You are providing a service by providing stories and allowing people to comment.

Theoretically, without any safe harbour, either you or Posterous could be found to be contributorily liable for copyright infringement in a comment on your blog, since you both provided services which allowed the infringement to occur.

So to answer your questions: 1 - Posterous has registered an agent, to protect themselves, and you might want to register to protect yourself. 2 - You both are potentially Service Providers. 3 - You can designate an agent (which could be you), and Posterous' designated agent on the form they have put in is Sachin Agarwal.

If you are worried, I'd suggest talking to a lawyer with expertise in Copyright law.

SoftwareMaven• 16 years ago

Or, for much less than the cost of spending an hour talking to the lawyer, just register and be done with it.

ez77• 16 years ago

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• 16 years ago

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).

noonespecial2• 16 years ago

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• 16 years ago

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• 16 years ago

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.

noonespecial2• 16 years ago

I was thinking more along the lines of neat new tax streams with the enforcement outsourced to trolls.

They want everyone to pay them, and they want people spooked so they're always in permission seeking mode, paying everything, just in case.

Symmetry• 16 years ago

Not really, the government can already tax away all the money it wants and (thanks to withholdings) probably annoy people less.

What you're describing feels like the sort of thing municipalities do to get money from people who live in other towns, like shorten yellows on streetlights with speed cameras. The federal government doesn't really need to do stuff like that, though, and compared to the money its already getting from you this is peanuts.

starkness3• 16 years ago

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.

tibbon• 16 years ago

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• 16 years ago

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.

armandososa• 16 years ago

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

troymc• 16 years ago

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

stellar678• 16 years ago

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• 16 years ago

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.

vegai• 16 years ago

Protection money. Really, America?

kennethh• 16 years ago

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.

parbo• 16 years ago

Or you could host your service in a sane country.

pizzaman• 16 years ago

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?

ams6110• 16 years ago

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.

patrickgzill• 16 years ago

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.

makeramen• 16 years ago

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.

The $105 Fix That Could Protect You From Copyright-Troll Lawsuits

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