Re: DMCA hearings and protests

On Wed, May 24, 2000, Dodi Schultz <schultz[_at_]compuserve.com> wrote:
>
> On Tue, 23 May 2000, Keith Taber <keith[_at_]drylaw.com> wrote:
> >
> > What are the possible consequences for misusing the DMCA? What
> > causes of action could I have if a copyright owner convinces my
> > ISP to take down my website wrongly (in the face of obvious fair
> > use defenses)?
>
> Fair use defenses are usually not "obvious," or they wouldn't become
> defenses (presupposing a cause of court action), would they?
>
> As to your main question: It's my understanding that, should someone
> charge that text (or other material) on your site has infringed a
> copyright, I don't believe your ISP would be held responsible, and
> I don't think anyone would demolish your site. Rather, I think that
> *you* would be obliged to remove the challenged *item.*
>
> Would one of the lawyers on this list please address this question?

The ISP removes the material so that it can maintain its immunity. That is the heart of the law. The question is what do I need to do to get the material back up, assuming that I have a clear fair use defense to copyright infringement. The DMCA provides for counter-notice by the accused, but this leads straight into litigation. What good is all of this if you end up in court anyway? It acts as a preliminary injunction without due process.

Many fair uses are obvious to those who practice in this area. Given an accurate and clear cut set of facts most of the attorneys, and many of the librarians, editiors, and others on this list, will give you a very confident prediction about whether there is a successful fair use defense. The fact that such an obvious defense is available has never stopped cease and desist letters and apparently there is now no protection against DMCA take downs.

Keith

Keith E. Taber
<keith[_at_]drylaw.com> Received on Fri May 26 2000 - 14:50:26 GMT