FW: [7.8.2002 44916] Notice of Copyright Infringement

From: Everhart, Glenn (FUSA) (GlennEverhartat_private)
Date: Fri Jul 12 2002 - 10:51:43 PDT

  • Next message: Blue Boar: "Re: [7.8.2002 44916] Notice of Copyright Infringement"

    The DMCA requirements on the ISP can be satisfied by a letter saying either
    1. The material disputed is removed (without I think necessarily
    acknowledging
    	that there was anything wrong with it), or
    2. That you state that the material is not in fact infringing. 
    
    Either keeps you online. If of course you do have infringing material, you
    could
    be sued and pursued possibly for perjury, but it does happen (happened to a
    fellow
    I know) that these complaints are based on filenames only and the contents
    may
    have nothing objectionable in them at all. Most likely these complaints ARE
    in fact
    based only on substrings of filenames, that being the simplest way to gather
    
    myriads of potential targets.
    
    The ISP, to avoid liability, needs either to unplug you or to get a letter
    from
    you as noted.
    
    Should the complainant decide to pursue you, it will of course have to get
    more
    evidence of actual infringement than a filename. For all anyone knows, you
    might
    have a great uncle named Homer J Simpson and have scanned in movies or
    photos of
    him to share. Or you might have something you should not.
    
    The case I knew about was some files whose names happened to contain a
    substring
    someone was claiming trademark issues with. The files were nonsense (had
    been downloaded
    incorrectly and were corrupted) and would have been GPL'd material had they
    been
    downloaded correctly, but the complaint letter still came, and it was still
    necessary
    to respond. The DMCA does not require much in the way of evidence, just a
    notice claiming
    some infringement. Nor does it require much of an ISP to ignore the notice:
    just a
    counterclaim. Things get more serious only afterwards when someone goes to
    court, if
    anyone does.
    
    
    -----Original Message-----
    From: Vachon, Scott 
    Sent: Friday, July 12, 2002 9:53 AM
    To: 'Meritt James'
    Cc: vuln-devat_private
    Subject: RE: [7.8.2002 44916] Notice of Copyright Infringement
    
    
    >They are a business.  Think "$ loss".  With one, a single person may or
    >may not end his subscription for a small amount.  With the other they
    >face fines of a high multiple of that.
    >What do YOU think they would do?
    
    Good Question James. We know that the person or company which owns
    "intellectual property'" is entitled to charge a price for its use. We also
    know they have the legal right to compensation for the theft of this
    property. Further, I would state that the ability to control the legal sale
    of/distribution of this media via online distribution (pay per view or
    single user purchase outright) is fundamental to the financial success of
    Broadband Media Providers and /or Media creators. What do I think they
    should do ? Perhaps selling an outrageously expensive PC hardware component
    for playback of the Copyrighted material (perhaps in conjunction with a card
    similar to that in DirectTV receivers) is a solution. It is not a perfect
    answer but, a step forward. And yes, I suppose one can argue this is a
    crackable solution too.
    
    Back to the original topic however, I did peruse the DMCA. I would agree the
    ISP is legally required by the DMCA to immediately ask the end user to
    remove the material and not distribute it. And from the sample letters
    submitted to the list, it appears the MPAA meets all their legal
    requirements under the DMCA. However, (and I am not a lawyer) it appears the
    ISP is released from liability if the "party notified" of the infraction
    acknowledges to the ISP that the copyrighted material has been destroyed or
    removed from the system (Section 202, Conditions, Paragraph E ???) . Simple
    as that ? I don't know but, it seems so. Perhaps someone on the list who has
    received the warning letter can respond to their ISP stating they removed
    the material and see what happens ??? Thought ?
    
    ~S~
    
    Disclaimer: My own two cents... 
    
    
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