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... ********************************************************************** This transmission may contain information that is privileged, confidential and/or exempt from disclosure under applicable law. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein (including any reliance thereon) is STRICTLY PROHIBITED. If you received this transmission in error, please immediately contact the sender and destroy the material in its entirety, whether in electronic or hard copy format. Thank you **********************************************************************
This archive was generated by hypermail 2b30 : Fri Jul 12 2002 - 15:59:40 PDT