Jim Henderson <nos### [at] nospamcom> wrote:
> Maybe for you.  We have this thing here in the US called "free speech" 
> which means that the government cannot pass laws that restrict speech 
> here.  But SOPA/PIPA and similar laws (DMCA, anyone?) allow content to be 
> removed from the Internet (or would allow, in the case of laws not passed 
> yet) merely on the word of someone claiming copyright.  The burden of 
> proof is on the alleged infringer, not on the alleged copyright holder.

  In principle if a company sends a DMCA takedown notice eg. to YouTube,
if the alleged infringer makes a counter-claim then YouTube is obliged
to restore the material without question. It is then up to the copyright
holder to pursue the situation further via legal means. (YouTube cannot
start judging if something is or isn't copyright infringement because
else they'll lose their "safe harbor" status that protects them from
being sued for distributing copyrighted material.)

  One of the main drawbacks with this system is that it's a breach of
confidentiality rights. That's because if you want to issue a counter-claim,
you have to include your full personal details (name, address...) for the
claimant to see. This could, in principle, be misused by nefarious parties.
(And in fact, it has been misused. There are concrete examples.)

-- 
                                                          - Warp

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On Fri, 20 Jan 2012 14:16:21 -0500, Warp wrote:

>   In principle if a company sends a DMCA takedown notice eg. to YouTube,
> if the alleged infringer makes a counter-claim then YouTube is obliged
> to restore the material without question.

That's not consistent with what I've heard - the alleged infringer can 
take legal action, but many users of YouTube are individuals who don't 
have the resources to go up against a big media company's lawyers.

Of course, I may not have heard the way it actually works, too.

Jim

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Jim Henderson <nos### [at] nospamcom> wrote:
> On Fri, 20 Jan 2012 14:16:21 -0500, Warp wrote:

> >   In principle if a company sends a DMCA takedown notice eg. to YouTube,
> > if the alleged infringer makes a counter-claim then YouTube is obliged
> > to restore the material without question.

> That's not consistent with what I've heard - the alleged infringer can 
> take legal action, but many users of YouTube are individuals who don't 
> have the resources to go up against a big media company's lawyers.

  No, the counter-claim can be made by the alleged infringer online (YouTube
even offers you directly instructions on how to do so) and YouTube has to
automatically restore the video, no questions asked.

  Of course the copyright holder can then pursue it further if it wants,
but the role of YouTube ends there. (Naturally if you made a spurious
counter-claim and the copyright holder pursues, I'm assuming you'll get
a harsher sentence if found guilty.)

-- 
                                                          - Warp

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On Fri, 20 Jan 2012 15:21:48 -0500, Warp wrote:

> Jim Henderson <nos### [at] nospamcom> wrote:
>> On Fri, 20 Jan 2012 14:16:21 -0500, Warp wrote:
> 
>> >   In principle if a company sends a DMCA takedown notice eg. to
>> >   YouTube,
>> > if the alleged infringer makes a counter-claim then YouTube is
>> > obliged to restore the material without question.
> 
>> That's not consistent with what I've heard - the alleged infringer can
>> take legal action, but many users of YouTube are individuals who don't
>> have the resources to go up against a big media company's lawyers.
> 
>   No, the counter-claim can be made by the alleged infringer online
>   (YouTube
> even offers you directly instructions on how to do so) and YouTube has
> to automatically restore the video, no questions asked.

That's interesting, I wasn't aware of that.  Thakns.

>   Of course the copyright holder can then pursue it further if it wants,
> but the role of YouTube ends there. (Naturally if you made a spurious
> counter-claim and the copyright holder pursues, I'm assuming you'll get
> a harsher sentence if found guilty.)

Perhaps, though I suppose if the rights are actually in question, then 
you probably wouldn't get a harsher sentence.  It would make a difference 
if you made a counter-claim in the hopes the rights-holder wouldn't 
bother pursuing it vs. there being an actual question of ownership.

Jim

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Jim Henderson <nos### [at] nospamcom> wrote:
> >   No, the counter-claim can be made by the alleged infringer online
> >   (YouTube
> > even offers you directly instructions on how to do so) and YouTube has
> > to automatically restore the video, no questions asked.

> That's interesting, I wasn't aware of that.  Thakns.

  There have been actual cases, though, where YouTube *has* seemingly
taken the role of a judge and determined *not* to restore some videos
even after several counter-claims. In at least one example when the
alleged infringer threatened to pursue legal against YouTube (well,
Google) because they were breaching their own "safe harbor" status by
taking an active stance, YouTube finally silently agreed to restore the
videos in question.

  The moral of the story is that if you are certain that you have not
infringed any copyright and some bully is shutting your video down by
making spurious DMCA claims, don't give up even if YouTube refuses to
restore the video at first. They just have to.

-- 
                                                          - Warp

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On Fri, 20 Jan 2012 16:24:42 -0500, Warp wrote:

> Jim Henderson <nos### [at] nospamcom> wrote:
>> >   No, the counter-claim can be made by the alleged infringer online
>> >   (YouTube
>> > even offers you directly instructions on how to do so) and YouTube
>> > has to automatically restore the video, no questions asked.
> 
>> That's interesting, I wasn't aware of that.  Thakns.
> 
>   There have been actual cases, though, where YouTube *has* seemingly
> taken the role of a judge and determined *not* to restore some videos
> even after several counter-claims. In at least one example when the
> alleged infringer threatened to pursue legal against YouTube (well,
> Google) because they were breaching their own "safe harbor" status by
> taking an active stance, YouTube finally silently agreed to restore the
> videos in question.
> 
>   The moral of the story is that if you are certain that you have not
> infringed any copyright and some bully is shutting your video down by
> making spurious DMCA claims, don't give up even if YouTube refuses to
> restore the video at first. They just have to.

I think they count on individuals not being willing to pay court costs to 
get a single video reinstated.

Jim

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On 1/20/2012 10:00 AM, Jim Henderson wrote:
> On Fri, 20 Jan 2012 09:14:37 +0000, Invisible wrote:
>
>>>> If they were planning to make it legal to lock Americans up without
>>>> trial, *that* would be seriously disturbing.
>>>
>>> They already have that.
>>
>> OK. In that case, if I had the misfortune to live in America, I'd be
>> *way* more worried about that...
>
> Indeed, there has been some noise about that addition to the
> appropriations bill.
>
>>>> Censoring the Internet is merely worrying
>>>
>>> Maybe for you.  We have this thing here in the US called "free speech"
>>
>> More like "had", by the looks of things...
>
> What do you base that statement on?  SOPA and PIPA are not actually laws
> that are being enforced - they are just bills that are currently dead.
>
Or, so we think. Seems the Fed already "used" part of this law, even 
before it was officially presented *as* one:

http://blogs.computerworld.com/17444/p2p_dns_to_take_on_icann_after_us_domain_seizures

The interesting result is that someone else already thought of the 
easiest bloody stupid way to pretty much hose there whole law. P2P DNS. 
There goes my multimillion dollar idea... lol

Seriously though, the biggest thing is the, "deny you the ability to 
even pay your bills, by cutting off the ability to transact in the US.", 
part of the damn thing. And you know damn well that is going on too, for 
legitimate crimes. What makes the bills bloody stupid isn't any of that, 
its the fact that you don't have to have any damn evidence, other than 
basically an anonymous tip, to do any of it, as they are written. Right 
now, the Fed at least has to have *some* cause to do it.

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On 1/20/2012 3:45 AM, Invisible wrote:
> I do not know much about how US law works. (Hell, I don't know much
> about how UK law works!) But I do wonder if the people behind this
> *actually* believe it will work, or whether they know damned will this
> will have no effect on piracy, and that's just a smokescreen in the
> first place... Perhaps I have become too cynical?
>
All I can say is, see my other last post. They have already "used" this 
tactic of killing ICANN DNS data, to close sites. It a) failed, since 
they where back up less than 24 hours later, under a new name, and b) 
didn't matter in terms of the "US funds" clause they tried to put in 
these things, since they where not in the US, and therefor either didn't 
need that, or where providing the content free, so where not selling to 
anyone in the US in the first place, where a transaction might happen. 
The super dumb comes from the presumption that they shouldn't have to 
have just cause, or evidence, or a court order, or anything else, 
presumably, other than some moron's "anonymous tip".

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On Fri, 20 Jan 2012 19:04:46 -0700, Patrick Elliott wrote:

> Seriously though, the biggest thing is the, "deny you the ability to
> even pay your bills, by cutting off the ability to transact in the US."

They already did that to wikileaks.  These bills don't make that 
possible, there are already laws that make that possible.

A big part of the problem here in the US is that we do tend to 
overlegislate everything.  Take driving while talking on a cell phone or 
driving while texting.  Distracted driving laws already cover that, but 
we need to pass more laws to make these specific things illegal?

I guess we also need laws that explicitly make it illegal to drive while:

1.  Eating a cheeseburger (and then one for tacos, and one for [...])
2.  Putting on makeup
3.  Shaving
4.  Brushing your teeth

etc, etc, etc.

I guess we need *something* to keep our legislators busy, it's not as if 
they spend a ton of time doing stuff to actually make things better.  
It's either "let's argue about things and get nothing done" or "let's 
pass laws that no sane person gives a crap about".

Jim

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On 1/20/2012 13:24, Warp wrote:
>    There have been actual cases, though, where YouTube *has* seemingly
> taken the role of a judge and determined *not* to restore some videos

I believe there have been cases where youtube (and others) have restored the 
videos promptly even without a counter-claim being filed, because it was 
obviously not infringing. And there have been cases where youtube has kept 
the video down in spite of a counter-claim because it was clearly infringing 
and the counter-claim was clearly perjury. I'm not sure it's completely as 
cut-and-dry as it seems in the law, and of course Google has enough money to 
lawyer up to the gills if someone tries to abuse them legally for doing the 
right thing.

-- 
Darren New, San Diego CA, USA (PST)
   People tell me I am the counter-example.

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