Re: DMCA hearings and protests

On Sat, 27 May 2000, Dodi Schultz <schultz[_at_]compuserve.com> writes:
>
> I don't understand your introducing the matter of eBay's offering
> of a device for sale and, according to your report, the offering's
> being withdrawn in response to a request from a group alleging
> some sort of unstated infringement.
>
> Since this was a device -- you describe it as a galvanometer -- it
> clearly never enjoyed copyright protection (you say it had been the
> subject of a patent but that the patent had expired).

The point is: even though the copyright claim was ludicrous, eBay was required by the DMCA to take down the "copyright infringement" until they got a response from the poster disputing the complaint. The ISP isn't allowed to ignore obviously bogus claims like this, even though their legal staff knows that electrical devices aren't copyrightable, and it isn't an infringement to auction a used one.

Even worse, the DMCA has no provisions to punish the complainants afterwards even if they knew (or should've known) that there was no merit to their copyright claim, and even if they acknowledged that it was done out of pure spite, nyahh, nyahh. Of course, you could sue them for <insert appropriate tort>; BUT you'll have to pony up the legal fees for that. The DMCA lets anyone censor you, and then requires you to spend your own money to stop them.

Imagine if I could falsely complain to your landlord that all your furniture and clothing belonged to me, and he/she was required to confiscate it and lock it up, until you provided a notarized letter to contest the lie. Imagine further that I could not be punished for this stunt, and that I could have a succession of friends file a new complaint every week, to keep your possessions tied up for an indefinite time (assuming the landlord doesn't just get fed up and evict you).

The DMCA ought to be changed so that takedown requires an affadavit signed under penalty of perjury, that you hold a valid copyright on the works to be taken down. This wouldn't be a hardship; I believe you could use a boilerplate affadavit, get it stamped by the local notary public, and send it registered mail; all in an afternoon and for under $20. And it'd make people think twice before they try to claim it is a "copyright infringement" to sell a used galvanometer!

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 / Lance Purple  (lpurple at netcom dot com) /
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