[tor-relays] DMCA letters

Matt Joyce toradmin at mttjocy.co.uk
Wed Mar 13 13:53:37 UTC 2013


On 13/03/13 02:20, Moritz Bartl wrote:
> On 12.03.2013 22:52, Roger Dingledine wrote:
>> In theory, it's also the case that you don't have to answer them at all.
>> The DMCA takedown requests are sent in error, since they refer to 512(c)
>> and it's actually 512(a) that applies in your case. 
> "Modern" DMCA infringement notices don't refer to any particular law, or
> request only a "takedown".
>
> Example from copyright-compliance.com/Irdeto:
>
> "[...]
> Therefore, this letter is an official notification to effect removal of
> the detected infringement listed in the below report.  The Berne
> Convention for the Protection of Literary and Artistic Works, the
> Universal Copyright Convention, as well as bilateral treaties with other
> countries allow for protection of client's copyrighted work even beyond
> U.S. borders.  The below documentation specifies the exact location of
> the infringement.
>
> We hereby request that you immediately remove or block access to the
> infringing material, as specified in the copyright laws, and insure the
> user refrains from using or sharing with others unauthorized materials
> in the future.
> [...]"
>
> I agree that we probably don't have to reply at all, but it just feels
> better, and most ISPs want us to "react".
>
There is probably value in replying even if only because it shows your
provider that you have it covered and you arn't going to become a
potential liability, especially in the event of a more serious issue
occurring.  It's just a little reassurance for them in my mind and it
doesn't really take a huge amount of time to pick up the relevant
boilerplate response and fire it off.

I always used to find it kinda amusing when a community site I ran once
would sometimes get these letters because someone had posted something
they shouldn't have, but the whole thing of sending a legal notice
citing US law to ref supposed content on an NL server controlled by a UK
based entity with no connection to the US.  The DMCA is a US domestic
law which is in fact utterly irrelevant for a site neither controlled by
a US citizen nor hosted in the US, Berne and the Treaties would be the
relevant ones then.  I wonder was the mail cited here sent with ref a
non US relay?  Though there can be value in treating it as if it applied
in the event one ever did try to take legal action under the law which
does, being able to demonstrate that you met that legal standard regardless.

I'd suspect that if you can demonstrate that you have taken the time to
reply to a notice demanding action citing a law that you were never
bound by and in so doing met the legal standard under said law is not
going to do any harm and may go toward making you look conscientious and
reasonable with a plaintiff who at best was simply lazy in their legal
research at worst are being intentionally vexatious and just looking for
a stick to beat you with.  Courts rarely appreciate such wasting of
their time because organizations with the resources to retain legal
advice conduct lacklustre research or because litigants are being vexatious.

I've yet to receive one related to tor but have run sites with user
content before and always used to amaze me the number of notices that
simply do not comply with one or more of the provisions of Title II
3(A)(i-vi) in one or more ways, even to the extent I had one company
send a notice on behalf of "our clients" for all of "our clients"
copyrighted works, note the identity of these clients was not given nor
even a representative list of the works and not signed.  I thought it
rather generous of me that they got a whole one sentence reply to the
effect of when they delivered a notice complying with the provisions of
3(A) specifically (i), (ii), (iii), (v) and (vi) all of which they
failed at, about the only one they managed to get right was (iv) and
then probably only because it's pretty much impossible to send an email
with no return address.  I wonder how many people have received a notice
that was actually physically or digitally signed ie compliant with
3(A)(i) text bellow? Until the relay recently I've not had anything up
that might generate such a notice in a few years so no idea if they got
better at this.

(i) A physical or electronic signature of a person  authorized to act on
behalf of the owner of an exclusive
right that is allegedly infringed.

As best my understanding of law is that would be satisfied by a
signature of the rights holder or the agent but one or the other would
be required not none, that said if that was the sole provision violated
I'd be inclined to reply requesting a new notice complying with the
above just to avoid issues with an attempt to suggest it substantially
complied and the service provider had not contacted the sender of the
notice.  It just seems ironic to me that this whole law was created
mostly due to copyright industry lobbying and yet these companies with
all their law legal advisers can't even supply a legally effective
notice.  I for one never recieved a corrected notice after replying to
state that I would take action only upon receiving a valid notification
(They were in the past something I could have taken action on valid ones
that actually pointed to something that actually existed on the site
that is).

One thing I was never sure of is if "electronic signature" referred to
what that term actually means in the real world ie PGP/x509 or similar
or does it include an image file consisting of a mere scan *copy* of a
physical signature in congressland?  Wouldn't be the first time a
technical term with literal meaning was used in an utterly different way
in a piece of legislation after all.

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