Sunday, April 03, 2016

Copyright Concerns

The Copyright Office solicited comments on how well or otherwise the DMCA takedown system has worked.  I submitted my own comment in the early hours of March 31st 2016.   If you must know, I wrote it between 4 am and 5.30 am while sitting in a Cleveland hotel bathtub, so as to not waken my family.

However, my comments may not have been received. The comments site was hit with what some would call a denial of service attack, allegedly by a webform which allegedly allowed individuals to comment repeatedly using a pre-written comment.

Here is my one and only comment.

Comment:"Congress intended for copyright owners and internet service providers to cooperate..." In my experience as an author, Congress's intentions have been ignored. Many ISPs do not cooperate. Some actively work to undermine copyright owners' rights.

"Safe Harbor" has been turned into a license for piracy and for search providers to profit from advertisement funded piracy or subscriptions. Many sites post the required DMCA verbiage, and then ignore it when takedown notices are sent, or have their own rules and guidelines that contradict the DMCA wording (either requiring the original uploader to re-up anything that is taken down, or else replacing the link that was taken down with a mirror, or duplicate). 

Otherwise highly respected sites refuse to post the name of the DMCA agent. EBay requires authors to "join their club" in order to send a NOCI...a time-consuming process which often results in an illegal auction coming to a profitable end for the copyright infringer and for EBay without the copyrighted material being removed or prevented from being re-sold in a subsequent auction. Other sites require all comers to sign up and often to subscribe before it is possible to view the content. This means that authors must expose themselves to identity and credit card theft and to downloading malware, or else must submit a good faith (but possibly erroneous) Takedown Notice.

Sending a Take-down notice is time-consuming for the copyright owner, especially for an individual author. Many sites make it difficult to file, especially if they require that the notice is submitted online, on their own proprietary form, and filling out the form requires that the copyright owner has several different internet windows open at the same time, and often the form cannot be printed off or screen captured so the author has a record of the submission. Many sites will not inform the copyright owner when the infringing material is taken down (so multiple follow ups may be necessary), and many sites will not inform the copyright owner what action if any has been taken against the uploader. In some cases, prolific uploaders can upload tens of thousands of infringing ebooks and be a moderator or celebrated uploader rewarded with WRZ$.

Some ISPs say that posting a link to where copyright infringing work is stored is fair use, some will claim that their own storage cloud does not count as storing the pirated files. Some say that telling would-be illegal downloaders where to find whatever they want to illegally download is "compliance" with the DMCA and protected by "Safe Harbor". Some say that, if a print book is not available as an e-book, it is fair use for a pirate or search engine to create that ebook and monetize it. Congress does not require that a diesel version is available of every electric car or vice versa. Congress does not require that peanut butter must be available in a peanut-free form. Why are internet denizens permitted to deny copyright protection to authors who--for good reasons--chose not to publish in e-form?

Google uses its "transparency" pages to republish links that it ought to know are infringing. For instance, if I Search for some of my works for which I have sent takedown notices, Google posts "In response to multiple complaints we received under the US Digital Millennium Copyright Act, we have removed 2 results from this page. If you wish, you may read the DMCA complaints that caused the removals at Complaint, Complaint." The words contain links. Clicking the links takes interested persons to a LumenDatabase page where the "removed links" are published, and can be used to go right back to the mobilism page where my copyrighted works are still being published and distributed by the site that circumvented my takedown notices. Meanwhile, Google, on its LumenDatabase site posts a big green box inviting anyone at all to "create a DMCA counter notice."

The trouble with DMCA counter notices is that, if one is created --even if bogus-- the copyright owner must sue in Federal court. It is very expensive to sue, especially if the entity to be sued is anonymous. And, if one does sue, quite often the costs are not recoverable. Imagine an author earning $6,000 a year or less from writing trying to sue Google, or an EBay user, or someone funded by EFF? The entire Safe Harbor and DMCA Takedown process is stacked against the individual. Please, Congress, make "takedown" mean "take down and keep down" and provide some real penalties for OSPs and ISPs that do not cooperate as Congress intended.

Rowena Cherry  

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