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swintec
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reply to newster

Re: Astraweb automates DMCA removals

said by newster:

carries no monetary penalty to the company making the false claim.

i suppose there could be some monetary damages, or at the very least, some litigation if a rights owner has their work being removed due to false complaints. After all, removals are being done with the filer swearing under penalty of perjury BUT, as individuals, who has the time or money to do so?

»www.plagiarismtoday.com/2010/06/···notices/

In this case, I am inclined to think some sort of customized version of the Newsnab indexing software is being used and then scripts are hitting off keywords and then mailing out. Lets face it, on the surface, it is a brilliant set up to achieve what their goal is. BUT...if everything is tied to what a header says...does a name necessarily mean it is infringing content?

if i want to share my collection of self shot Unruly & Ferocious Cats with the usenet community, what happens to my posts?
--
Usenet Block Accounts | Unlimited Accounts

sandman_1

join:2011-04-23
11111

1 edit
Exactly and what if I or someone encrypted the rar with a password and named it similar to some movie, album, or event. Someone should do this just to test to see if they (the so called copyright holder or proxy acting in behalf) actually check to see if the material is actually infringing on their copyright. I bet they don't.

Newster said:

quote:
As long as these DMCA claims are made "in good faith" (which they usually are) having the bot's collateral-damage rate of 10%, 50%, 90%, or probably even 100%, carries no monetary penalty to the company making the false claim.

They are not in this case. Matter of fact, I believe that the Morganelli Group have direct access to Astraweb's servers through their so called "API". Also no one is checking to even see if the claims are valid or using the correct process defined in the DMCA.

quote:
Under the notice and takedown procedure, a copyright
owner submits a notification under penalty of perjury, including a list of specified
elements, to the service provider’s designated agent. Failure to comply substantially
with the statutory requirements means that the notification will not be considered in
determining the requisite level of knowledge by the service provider

There is no agent in this case.

Also there are penalties for misrepresentation.

quote:
Penalties are provided for knowing material misrepresentations in either a
notice or a counter notice. Any person who knowingly materially misrepresents that
material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred
by the alleged infringer, the copyright owner or its licensee, or the service provider.
(Section 512(f))


newster

join:2011-09-26
reply to swintec
said by swintec:

said by newster:

carries no monetary penalty to the company making the false claim.

i suppose there could be some monetary damages, or at the very least, some litigation if a rights owner has their work being removed due to false complaints. After all, removals are being done with the filer swearing under penalty of perjury BUT, as individuals, who has the time or money to do so?

I meant to say that the law does not impose statutory damages to the copyright owner (or hired representative) that makes erroneous DMCA removal requests, as the DMCA imposes on the party accused of hosting infringing material if it is not removed.

So without the benefit of statutory damages, the party hurt by a bogus copyright enforcement must prove actual damages, which is a far higher threshold of proof for (usually) a far lower settlement.

I've yet to see anyone ever going to court, even in the most egregious examples of over-zealous copyright enforcement, such as MediaDefender's DoS attack on Revision3's server which knocked it offline for several days.

The "swearing under penalty of perjury" only applies to whether a party is authorized to make the claim of owning the copyright (or representing the owner) and thereby making the claim "in good faith." It has absolutely nothing to do with whether or not the claim is accurate, as sloppy mistakes (no matter how careless) are not perjury violations. But since many of these complaints are processed entirely by bots, how could the law possibly penalize a computer for making a bad judgment, even if it were liable (which it is not of course)?

The main problem, in my opinion, lies in the law allowing a computer to make legal decisions. Hopefully this trend will be reversed before we descend into some kind of RoboCop like dystopia.

said by TOPDAWG:


so looks like everyone is removing those files.

Usenet itself is centered squarely in the copyright cartel's crosshairs right now, and every server will be hit sooner or later, so the only real difference between one NSP and another is how long it takes them to process DMCAs and remove the material.