Section 512 Study: Notice and Request for Public Comment

[The-Gobbler]

Just stumbled upon this: https://www.federalregister.gov/articles/2015/12/31/2015-32973/section-512-study-notice-and-request-for-public-comment

It seems the DMCA is up for public comment.  The trolls are already out there commenting as I found this on a troll's twitter stream.

Reckon it's a good call to leave some commentary.  I would gladly help spread the word if people know the right way to go about this - 1000s of troll victims commenting would go along way I would imagine!

[stinger]

This is cool and this is big.

I would like to see ELI organize this process from our perspective.  In other words, break down the areas in the DMCA where ELI members have had difficulty, get someone to spearhead each area, which means research and respond in an organized manner.  The spearhead person could ask for input from the community, research past posts on that area, write an organized comment, and open it up to others in the ELI community to review/edit.

I know this sounds like a lot of work.  But the trolls will do it to try to influence changes that benefit them.  This might be an opportunity for us.  I know Greg has a lot of data/examples of little guys being abused.  This might be the time to bring this to the Fore.

[The-Gobbler]

Count me in.

[The-Gobbler]

Guys - take a look at this: http://blog.digitalmedialicensing.org/?p=3108

This breaks down the input process pretty simply and links to the actual questions that the government is seeking answers to.  For example:

 -- How has the safe harbor for internet service providers impacted the protection and value of copyrighted works, including licensing markets for such works? And have the safe harbors struck the correct balance between copyright owners and online service providers?
 -- How effective, efficient, and/or burdensome is the notice-and-takedown process for addressing online infringement?
 -- Does the notice-and-takedown process sufficiently address the reappearance of infringing material previously removed in response to a notice?
 -- Are there any existing or emerging “standard technical measures” that could or should apply to obtain the benefits of the section 512 safe harbors.(For example, should the OSPs work with image libraries in using image recognition technology to eliminate infringing works from their sites?
 -- What, if anything, should be done to address these concerns?

Bear in mind there is more to it than this and you can see all of it on this PDF here:  http://copyright.gov/fedreg/2015/80fr81862.pdf

Copyright holders are reading this and giving their input.  Most of them are ethical people who just want to make it easier to protect themselves. However it is very likely that trolls are adding input too.  If you have been the victim of a troll it is super important to add your input to this.

Anyone have any suggestions? I will add mine once I get done writing them here.

[The-Gobbler]

Gang - the deadline to comment on this stuff has been extended to April 1.  You can submit your comments here: http://www.copyright.gov/policy/section512/

Below is (more or less) what I've submitted on some of the 30 points.  Feel free to copy it or paraphrase it.  The more people comment the better.

+++

Writing to express my opinions and experiences with regard to Section 512.  I am a small publisher (defined as a type of service provider for the purposes of this law) who allows members of the public to post articles on my site.  Although we very strictly monitor the posting of images on our site we have had incidents wherein users have unknowingly posted copyrighted images. Unfortunately, this has opened us up to attack from aggressive stock photo companies (copyright trolls) who have extorted sums of money from us under the threat of a lawsuit.

Below is a breakdown on my responses to the relevant sections of your request:

1. Are the section 512 safe harbors working as Congress intended?

Mostly yes, however, copyright trolls (mainly stock photo companies) have found a loophole that they are exploiting to extort egregious amounts of money from infringers that radically exceed anything resembling actual damages.  In many cases they are able to extort from accidental infringers who have gone to great lengths to avoid infringement and who are taken completely by surprise by these accusations.  Given that these companies use automated software to locate infringements (typically worth $20-$100) there is no logical reason they should be able to demand monies sometimes exceeding $5,000 for single infringements.

3. How have section 512’s limitations on liability for online service providers impacted the growth and development of online services?

Letting copyright trolls, mostly stock image companies, run rampant against publishers has severely impacted our ability to do business and is a huge distraction from things that actually matter. It also flies in the face of the spirit of copyright law because the infringements are generally trivial accidents with immeasurably small damages - they are purely money grabs by stock photo companies.

6. How effective is section 512’s notice-and-takedown process for addressing online infringement?

The notice system is fine, however requiring that a DMCA agent be filed has added confusion to the situation. Many publishers are not aware of what a DMCA agent is, or have filed on only recently which opens the door to trolls who can threaten a publisher for infringements they had no control over or may not have even been aware of.  At the very least the filing of a DCMA agent should be retroactive to the founding of the company. 

7. How efficient or burdensome is section 512’s notice-and-takedown process for addressing online infringement? Is it a workable solution over the long run?

There is nothing burdensome about the process, in fact, it is easily automated.

8. In what ways does the process work differently for individuals, small-scale entities, and/or large-scale entities that are sending and/or receiving takedown notices?

Small scale publishers can be easily abused by trolls who hold all the cards in the current legal arrangement. Even in cases of obvious innocence it is usually cheaper to pay a troll than to attempt to fight in court - even if the defendant wins.

9. Please address the role of both ‘‘human’’ and automated notice-andtakedown processes under section 512, including their respective feasibility, benefits, and limitations.

Automated take-down notices make sense but should not be allowed to demand money unless an infringer fails to take immediate action and remove any infringing material.  A simple cease and desist letter should be the required first step and could also be easily and cheaply automated - if, and only if, the cease and desist is ignored should further action be allowed.

12. Does the notice-and-takedown process sufficiently protect against fraudulent, abusive or unfounded notices? If not, what should be done to address this concern?

Sadly no. There is a cottage industry of stock image trolls now running rampant across the internet with the ability to demand completely arbitrary dollar amounts for infringements regardless of the circumstances of the infringement.  This is major problem for small businesses and needs to be stopped.  At the very least an accuser should be required to send a cease and desist before any demand for money.  Beyond that the accuser should be required to show that there have been actual, measurable damages suffered and not be allowed to simply make up a number and demand it.

[Robert Krausankas (BuddhaPi)]

can you please share what this "loop hole" is you are referring to,and how it ties into DMCA?

"copyright trolls (mainly stock photo companies) have found a loophole that they are exploiting to extort egregious amounts of money "

and you state this: "Automated take-down notices make sense but should not be allowed to demand money"

do you have a dmca takedown notice that also demands money? that's not how the process works, if you have a properly filed registered agent..

"A simple cease and desist letter should be the required first step ".... with a properly filed registered agent, the DMCA takedown notice IS the cease and desist, but also allows a counter claim to refute the infringement.

Overall DMCA is a good system, is it abused?? yes in the forms of mistruths, should the filer of bogus takedowns be held accountable?? YES, this is the biggest problem I see with DMCA.. ON another note you mentioned that a registred agent should be automatic when registering a company...not all businesses need to have a registered agent, so this would be a waste of time and money, also it's not the governments job to alert folks about Registered Agents, that falls squarely on the business owner/ site operator to do their due diligence.

These bots that find infringements, don't find registered agent links on sites and they should, however it is easy enough if one gets a demand letter, while having a registered agent, to simply send once response telling these douchebags that an agent is in place..and reminding them that by law they must follow DMCA guidelines..end of story,end of case, end of any monetary demands.

[The-Gobbler]

Thanks, yeah, it's just a draft so it may have problems in it. And all just opinions.

There are several "loopholes" I was referring to.  The main one is the fact that if an alleged infraction took place prior to the registration of the DMCA agent then the DCMA agent is no good.  Seems like it should just be retroactive to me.

Also, I'm trying to point out another loophole that the trolls abuse is the fact that they can just make up damages based on pure voodoo and have no obligation to base them in reality.

The part about the cease & desist is just my idea.  So many of these image infringements are completely accidental that it would seem way more ethical to require a copyright holder to demand a take down - with no money changing hands.  If the person ignored the warning, then sue all you want. The whole thing could be easily automated.

[The-Gobbler]

Anyway... I plan to make some revisions to make my comments more clear but I just noticed that there are only a couple dozen comments registered on this thing.  I know there are many of you with smart things to say about how the law is written here. I hope you'll all take the time to leave a few comments.  You never know, you might go a long way towards shutting down, or at least greatly improving the troll situation!