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Re:Staffer axed by Republican group over retracted copyright... by sologoub on Thursday December 06, 2012 @01:43PM (#4883098)
Well, the false or blanket DMCA take-down requests are a real problem.

Here's the recent HN example of how idiotic these have gotten: http://news.ycombinator.com/item?id=4867216 (Movie Studios Ask Google To Censor Their Own Films, Facebook and Wikipedia (torrentfreak.com))

Re:Staffer axed by Republican group over retracted copyright... by edj on Thursday December 06, 2012 @02:36PM (#4883401)
I have no idea how big of a problem false or fraudulent copyright claims are, but they are in fact already illegal under U.S. copyright law:

Section 506(c) [1]:

Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

Section 512(f) [2]:

Misrepresentations. - Any person who knowingly materially misrepresents under this section —

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

[1]: http://www.copyright.gov/title17/92chap5.html#506

[2]: http://www.copyright.gov/title17/92chap5.html#512

Re:Staffer axed by Republican group over retracted copyright... by bathat on Thursday December 06, 2012 @07:11PM (#4884642)
Can you point to a single instance of someone or some organization being successfully prosecuted for issuing a false or fraudulent DMCA take-down request? Yes, such requests are illegal under current law, but that law is never enforced. Part of the problem (in my, possibly uniformed, opinion) is that the legal standard is too high: you have to "knowingly" issue a false DMCA request, and that is a tough standard to prove in court. There is no penalty for shotgunning take-downs every which way and seeing what sticks (and saying "oops, my bad" for the ones that don't).

Why does issuing a DMCA counter-notification not automatically trigger an investigation by the FBI?

Then there is the problem that DMCA is woefully inadequate to deal with Fair Use. Fair Use is often cited inappropriately to justify unauthorized copying that does not rightfully fall under Fair Use exceptions. However. DMCA makes no such distinction, and it is up to the entity hosting the allegedly-infringing content (i.e., the one to which the DMCA notice is sent) to determine whether the content is actually infringing. Even when an unauthorized copy of a work passes each of the four parts of Fair Use test with flying colors, the DMCA takedown requester is still not in violation of the law you cited. So there is no disincentive to issuing spurious take-down requests.

Re:Staffer axed by Republican group over retracted copyright... by tptacek on Thursday December 06, 2012 @07:12PM (#4884648)
Because FBI investigations are horrendously expensive, and most of what's happening in DMCA issues is civil, not criminal?
Re:Staffer axed by Republican group over retracted copyright... by bathat on Thursday December 06, 2012 @07:36PM (#4884747)
Valid point. Question: When congress makes infringement a criminal matter, do you think false and fraudulent copyright claims should be treated a criminal matter (since they would be, essentially, false police reports)?
Re:Staffer axed by Republican group over retracted copyright... by nitrogen on Thursday December 06, 2012 @11:53PM (#4885533)
Previous discussion on HN has come to the conclusion that the false DMCA takedown prohibitions are effectively toothless because the adverbs used set an incredibly high bar of proof and malice.
Re:Staffer axed by Republican group over retracted copyright... by emiliobumachar on Thursday December 06, 2012 @05:35PM (#4884253)
A big part of the problem is the difficulty of proving fraudulent intent beyond a reasonable doubt.
Re:Staffer axed by Republican group over retracted copyright... by tptacek on Thursday December 06, 2012 @01:53PM (#4883156)
They're a real problem, but how significant are they compared to the other peoples copyright reform advocates have? Spurious takedowns don't kill companies the way lawsuits do. I think takedowns are a cosmetic problem.
Re:Staffer axed by Republican group over retracted copyright... by tehwalrus on Thursday December 06, 2012 @02:07PM (#4883239)
megaupload.

He was stupid, but a friend lost a load of legitimate, original work; he'd been using it as an external hard drive and sharing mechanism for his large project files.

Re:Staffer axed by Republican group over retracted copyright... by tptacek on Thursday December 06, 2012 @02:19PM (#4883309)
The Mega prosecution was not spurious. The DoJ's discovery turned up a number of emails from Kim Schmitz and his team in which they openly admitted to compensating affiliates for uploading copyrighted material. Megaupload wasn't killed because of lax regulation over DMCA takedown regulations; it was killed because it was not, unlike Reddit or even Youtube, a bona fide clean-hands user-generated content exchange, but rather a piracy product wearing user-generated content clothing.
Re:Staffer axed by Republican group over retracted copyright... by Dylan16807 on Thursday December 06, 2012 @02:26PM (#4883348)
I would venture to say that the vast majority of piracy on megaupload was done without the knowledge of the people running the site. And it's obvious that some of the affiliate payments are going to go to people breaking the law on any site, unless you run background checks on your affiliates.

Megaupload may have been tuned toward being a 'piracy product' but that does not mean it was anything other than user-generated piracy.

Re:Staffer axed by Republican group over retracted copyright... by tptacek on Thursday December 06, 2012 @02:29PM (#4883368)
Again: the Mega indictment is full of transcripts of emails in which Kim and his team arrange to pay people to put pirated material on the site, and in which they repeatedly acknowledge the existence of copyrighted material on the site. One guy complains to support about the quality of the video on a Dexter episode, and Kim writes concerned mail to his team about video quality!
Re:Staffer axed by Republican group over retracted copyright... by Dylan16807 on Thursday December 06, 2012 @05:46PM (#4884317)
Sorry, I somehow missed the emails about them actually arranging for pirated material. The worst I had known about was copying videos off youtube. But the Dexter email is valid. If illegal files find a bug you still need to fix the bug unrelated to removing the files.

A few minutes later: Okay I just skimmed through the indictment again and I can't find what you're talking about. There's points 54 and 55 about how they didn't cancel the affiliate accounts of people that had uploaded infringing files, but I can't find anything about them actually arranging pirated material, or specifically encouraging its upload. Also point 69d says out that copyright-violating uploads were disqualified for rewards, though Megaupload rarely terminated the accounts.

Re:Staffer axed by Republican group over retracted copyright... by tptacek on Thursday December 06, 2012 @06:35PM (#4884498)
Start with page 32.
Re:Staffer axed by Republican group over retracted copyright... by Dylan16807 on Thursday December 06, 2012 @06:50PM (#4884559)
Ah, thanks. Well I see a lot of bad behavior, from them looking at user uploads, finding pirated files, and not removing them. But it's still unsolicited uploads. Page 33 mentions disqualification of 'very obvious' copyrighted files, but being 'rather flexible'. This is bad, but it's not going out and encouraging illegal-in-particular uploads. It's just poor policing on the affiliate program.
Re:Staffer axed by Republican group over retracted copyright... by tptacek on Thursday December 06, 2012 @07:03PM (#4884616)
Page 32 is content from a discovered email in which a Megaupload employee calculates the affiliate bonus due to a user based on the value of the copyrighted files that user uploaded.

This isn't reading-between-the-lines stuff. It's there in black and white.

Re:Staffer axed by Republican group over retracted copyright... by Dylan16807 on Thursday December 06, 2012 @08:30PM (#4884996)
Right, it's black and white that they ignored copyright violations on a bunch of files. But that is not the same as encouraging infringing files over non-infringing files, or asking people to upload infringing files.

If you uploaded a popular infringing file, you might get $100, or you might get disqualified.

If you uploaded a popular non-infringing file, you would definitely get $100.

Megaupload knew about some of the piracy. That does not mean they arranged it. They treated it like any other file.

Re:Staffer axed by Republican group over retracted copyright... by nitrogen on Friday December 07, 2012 @12:00AM (#4885553)
Also keep in mind that an indictment is designed to make the indicted party look as unsympathetic as possible. There may be additional context given which turns those e-mails from "smoking gun with Dotcom's demonic fingerprints" to just "Viacom vs. YouTube-esque questionable behavior" if that case ever goes to court.
Re:Staffer axed by Republican group over retracted copyright... by CamperBob2 on Thursday December 06, 2012 @03:47PM (#4883707)
One guy complains to support about the quality of the video on a Dexter episode, and Kim writes concerned mail to his team about video quality!

This is called "Doing it right."

If Showtime would sell me a license to view their content, I wouldn't even be tempted to download it for free. Since they refuse to, it's going to be tough to work up any righteous dudgeon towards Schmitz and crew, especially when they go out of their way to adopt a customer-oriented approach.

Copyright is a government entitlement that we spun from whole cloth. Capitalism, on the other hand, comes naturally. You can't fight Mother Nature.

Re:Staffer axed by Republican group over retracted copyright... by philwelch on Thursday December 06, 2012 @03:59PM (#4883765)
You realize capitalism and IP are both based on the government enforcing a form of property rights, right? There's nothing "natural" about either.
Re:Staffer axed by Republican group over retracted copyright... by CamperBob2 on Thursday December 06, 2012 @04:50PM (#4884016)
Really? I can't own a means of production without government backing?

That's... novel.

Re:Staffer axed by Republican group over retracted copyright... by philwelch on Thursday December 06, 2012 @05:18PM (#4884148)
Property rights, in the sense that's necessary for capitalism, requires authoritative enforcement to actually work, which in requires government. Both theoretically and empirically. It's not a novel idea at all.
Re:Staffer axed by Republican group over retracted copyright... by CamperBob2 on Thursday December 06, 2012 @08:57PM (#4885087)
My point is that some property rights can arguably be seen as natural rights, while others definitely cannot be interpreted that way. Copyright is unquestionably not a natural right. It's entirely an artifact of our legal system, and a very recent one at that.

As humans we've always had the concept of "property" to some extent, independent of government. That's not true of copyright law. That was something we invented in response to a specific need, but we invented it at a time when few/no other legal or intellectual tools were available. Copyright should never be treated as the sacred cow that property rights in general are, IMO.

Re:Staffer axed by Republican group over retracted copyright... by philwelch on Thursday December 06, 2012 @11:16PM (#4885451)
> My point is that some property rights can arguably be seen as natural rights, while others definitely cannot be interpreted that way. Copyright is unquestionably not a natural right.

This "natural rights" talk sounds like theology to me. From an anthropological perspective, humans invented intellectual property around the time it became useful, just as humans invented land ownership around the time that became useful. You can say the same about owning shares of a business or owning currency. These are exactly the artificial property rights you need for capitalism, and you need government for those rights, and hence capitalism, to actually work.

Re:Staffer axed by Republican group over retracted copyright... by CamperBob2 on Friday December 07, 2012 @02:15AM (#4885899)
This "natural rights" talk sounds like theology to me.

As does the idea that governments are a magical prerequisite for property rights.

... just as humans invented land ownership around the time that became useful.

Try taking a bone away from a dog, and my point might seem clearer.

Re:Staffer axed by Republican group over retracted copyright... by philwelch on Friday December 07, 2012 @03:39AM (#4886089)
A bone? Sure. Land? Stock in a corporation? These are the property rights capitalism is made of. Entire cultures have existed well into written history without either concept (one of the things that made it easier to forcibly remove them from the land they lived on, which likely means that your "natural law" arguments for land ownership are insufficient to protect the property rights of almost anyone in North America).

What you need for capitalism is centrally enforced rights to things like land and corporate equity. That is not a simple extrapolation for protecting one's personal possessions any more than copyright is. And like copyright, they require a government.

Re:Staffer axed by Republican group over retracted copyright... by phaus on Thursday December 06, 2012 @06:36PM (#4884504)
You can own a means of production without government backing, but without establishing laws and implementing a means of enforcing them, there's no guarantee that someone wouldn't come along and take it by force.

I just finished a Law 101 class so I'm by no means an expert, but I think the above explains the theory behind why we need laws. Whether you think the theory is legitimate or not is up to you. When I started the course, I was surprised to learn that our entire legal system was designed around the concept of property rights.

Re:Staffer axed by Republican group over retracted copyright... by philwelch on Thursday December 06, 2012 @07:38PM (#4884761)
For ownership to work you need authoritative registration and settlement of potentially competing property claims.
Re:Staffer axed by Republican group over retracted copyright... by tehwalrus on Thursday December 06, 2012 @02:24PM (#4883340)
Maybe so, but the FBI still haven't given my friend his work back.
Re:Staffer axed by Republican group over retracted copyright... by tptacek on Thursday December 06, 2012 @02:34PM (#4883388)
Your friend should be pretty pissed at Kim Schmitz for deceiving him into thinking that MegaUpload was a general-purpose file hosting site and not the criminal piracy conspiracy that it clearly, deliberately, lucratively was. You know, in addition to being pissed at the FBI.
Re:Staffer axed by Republican group over retracted copyright... by ekimekim on Thursday December 06, 2012 @03:07PM (#4883547)
I'm not denying that MegaUpload engaged in piracy, but that doesn't stop it from ALSO being a general-purpose file host. This is very tangential to copyright law, but there was no good reason morally (and, as far as I'm aware, legally) not to return customers data.
Re:Staffer axed by Republican group over retracted copyright... by tptacek on Thursday December 06, 2012 @03:15PM (#4883582)
This is the human shield theory of defending a criminal enterprise, isn't it? Profit from piracy, but cover it up with innocent people's documents.
Re:Staffer axed by Republican group over retracted copyright... by bediger4000 on Thursday December 06, 2012 @05:41PM (#4884291)
No, it's the Betamax defense, isn't it? Substantial non-infringing uses make the technology allowable.
Re:Staffer axed by Republican group over retracted copyright... by res0nat0r on Thursday December 06, 2012 @07:23PM (#4884687)
Correct, and this is why Amazon S3 probably the biggest filesharing system in existence is not being sued and being taken offline. Megaupload, not so much.
Re:Staffer axed by Republican group over retracted copyright... by tehwalrus on Thursday December 06, 2012 @03:19PM (#4883599)
(in reply to the much more nested comment) but this is the age of electronic data - it is easy to delete the content that was the subject of the DCMA and leave the rest of the site up read-only for a month while people archive (or something).
Re:Staffer axed by Republican group over retracted copyright... by danielweber on Thursday December 06, 2012 @03:26PM (#4883635)
While I think the government could have been more forgiving of innocent third parties, remember that MegaUpload was a virtual company where all the computers were leased on the cloud. Those vendors were not being paid and meanwhile had capital costs on their equipment for as long as the prosecutors were copying off data. They deserved to have their equipment returned to them as soon as possible.
Re:Staffer axed by Republican group over retracted copyright... by nitrogen on Friday December 07, 2012 @12:04AM (#4885562)
Sure, but he should still expect his seized "property" to be returned, just as if he had stored his archives at a storage facility whose owners were willfully ignorant of other customers running bootlegged DVDs on site.