This. Then the tech news and commentators on HN, etc., get agitated and complain about IP rights as if the actual lines are drawn where the scared platform owners think they are.
Forcing platforms to host material that may, arguably infringe copyrights or trademarks isn’t a solution.
What’s needed are bright-line rules for determining fair use. Bright-line rules, however, are basically impossible for all but the simplest cases. Most cases are far too nuanced or deal with novel uses.
The DMCA in its current form chills both free speech and industry, and it should be revised or repealed.
But, I suspect that Disney did not directly threaten Redbubble over this specific shirt. My guess is that this takedown is a product of the system, not a product of a specific phone call from a lawyer.
Are you using “the DMCA” as shorthand for “the risk of contributory infringement lawsuits which predates the DMCA and which the DMCA safe harbor provisions mitigate”, or something else?
This creates an environment where platforms are extremely trigger-happy to remove content. There is very little reason not to take down every piece of content you get a request for, even if it's obviously fair use, because refusing to take it down opens you up for liability as a platform. Compare this to something like Section 230, where platforms are just not liable for 3rd-party content period. They don't have to worry so much that they're going to suddenly get dragged into court because they refused to listen to someone who complained about a likely legal piece of content.
The DMCA safe harbor is better than making platforms directly liable, and a repeal of just the safe harbor laws and nothing else would be pretty bad. But lots of things are better than making platforms directly liable, that's not a high bar to clear. Even with the safe harbor provisions, it's still generally a harmful piece of legislation because it strongly incentivizes thoughtless takedowns.
Also worth noting that DMCA does not simply maintain status quo on copyright law outside of the safe harbors, it also expanded copyright in a number of harmful ways (most infamously barring circumvention of DRM). Those parts aren't so relevant to what we're talking about, but I do want to bring up that there are plenty of other reasons beyond the current situation with Redbubble to criticize the law.
> the risk of contributory infringement lawsuits which predates the DMCA
Don't get me wrong, I'm also open to revising/repealing some of them, but they weren't the thing I was referring to in this comment.
That's actually a controversial judicial expansion of 230 which has, AFAIK, only been been explicitly endorsed by one federal appeals circuit (and which there is a very strong case from the text of the CDA is the wrong interpretation), though I don’t know that any circuit has ruled the other way (cases which would turn on the distinction are not super common); on its face 230 only removes publisher liability under the conditions it provides, which would, under the rules applicable pre-230 (and not offline content still), leave distributor liability. Distributor liability is notice-based, much like contributory infringement under the DMCA safe harbor regime, though it operates on actual notice, rather than requiring adherence to a prescribed procedure.
Regardless, Section 230 as it is applied today protects distributors like Twitter from liability for hosting illegal content in a way that the DMCA as it is applied does not. Reworking the DMCA to work more like the common interpretation of Section 230 by companies and the courts would be a large improvement over the current DMCA.
Whatever the law's intent, in practice platforms like Twitter, Youtube, and Redbubble are strongly incentivized to remove any content they think might be infringing without considering fair use or the validity of the takedown requests they get. This incentive and its effects are much more noticeable with the DMCA then they are with most other liability laws online, including Section 230. And that incentive is harmful for creativity, industry, and speech.
Congress—both parties, for different reasons—seems more in the vein of “the basic idea of 230 is wrong in any case and we need to broadly restore publisher liability” (though most of the specific examples cited for that position seem to be situations where the host had actual notice, so there's probably a good argument that the expansive application of 230 beyond its text is a central part of the reason it keeps getting chipped away at); I think Justice Thomas wrote extensively on the distributor liability argument in a dissent (maybe concurrence) to a decision that turbed on another issue.
The DMCA as it's applied today has a lot of unintended consequences and problems. For Section 230 to be interpreted in the same way would not equalize the two laws and make both of them unproblematic, that would just be a world where content was as vulnerable to stuff like frivolous libel takedown requests as it currently is to frivolous copyright takedown requests. It would be a disaster for the Open Internet.
My take is that we can look at the application of the DMCA today and see its effects, and view that as pretty strong evidence that this approach doesn't really work and that very little else in regards to platform/distributor liability online should be set up to work like the DMCA does. So I would love to see the DMCA revisited and the takedown provisions dropped.
No, I don't think so. It wouldn't completely shock me if it was true, but I wouldn't expect it.
My prior is that Redbubble has a list of words that just trigger takedowns or at least reviews, and "Loki" is one of them. I don't think Disney needs to threaten companies like Redbubble over every individual item, they can file a normal takedown request. I suspect that Redbubble is just generally scared of Disney overall, and that fear leads them to issue broad takedowns without the need for any other inputs.
I don't know for certain, but I suspect this is an unprompted, voluntary move by Redbubble.