Saturday, 5 July 2014

How-to: Understand Take-down Requests - Part 1


 
I had to submit my first DMCA Take-down request this week. I was quite sad. Not only did I have to resort to one of the worst pieces of legislation to come out of the US since the Second Amendment, but it also made me one of the establishment.

Digital Millennium Copyright Act, 1998: a poorly drafted, draconian piece of legislation foisted on the world by the music and movie corporates, proving that America really does have the best government money can buy.

DCMA is a standard process for US-based services and Internet Service Providers. United Kingdom-based ISP's have a different "DMCA Takedown" process (Cease and Desist) than those in the USA; see the Electronic Commerce Directive 2000 (if you have nothing better to do with your life).


The basis for notice and takedown procedures under EU law is article 14 of the Electronic Commerce Directive 2000 (yawn).

None of these are particularly well-drafted pieces of legislation, for all the draconian penalties threatened at the end of them.

...although the DMCA is part of US Copyright law, a DMCA Takedown does not require the content to be copyrighted in order to process the takedown OR for the request to have the content taken down acted upon by the website owner or ISP.

... the fact the content is yours, or in the case of a photo or video, it is you, is enough to request a takedown and for the website owner and ISP to comply
(
DMCA.com)


Some might say; fair enough, the Internet has been like the Wild West and it's about time copyright owners had some means of redress. 

ISP's, websites and service providers should follow the local law when processing takedown requests. Jurisdiction gets tricky when the company or service is based in one legal territory but the service is hosted in another.  For most 3rd party publishing platforms or services such as Scribd, you should initially use the copyright infringement reporting process outlined by the service.

For websites hosted by private individuals or institutions, a polite, standard letter should be used in the first instance using whatever contact process is given on that site. You don't want to use the nuclear option of legal threats unless you've tried the more civilised route first. Co-operation is more effective than confrontation.

For example, the standard letters issued by the current client are overwhelmingly polite:
Dear Colleague,
We have noted that one or more of our publications are currently available to download for free on your website.

Although ours is a not-for-profit organisation, we are able to continue our work supporting the sector through the sale of our publications and other resources. For that reason, we would like to request the removal of the resource download from your website.

We are always happy to look at other ways to support your colleagues or subscribers to access our resources, so if you find our resource valuable then please contact us and we can discuss this with you in more detail.

If the site owner or author does not respond, you can track down the ISP hosting the site and escalate the request, but most ISP’s don’t give a monkey’s about content hosted on sites unless they are given proper notice of copyright infringement. Most ISP’s have their own copyright infringement reporting process and provision for enforced take-down of user-posted content written into their terms of service.

All service providers are terrified of legal takedown notices since the Kim Dotcom / Mega Upload fiasco in New Zealand and the Swedish ‘Pirate Bay’ closure, when the 300lb gorilla that is the American govt leaned on both nations to take action.

That said, many ISP’s and services have adopted labyrinthine processes for takedowns which can take some time. The exception is YouTube which will suspend entire accounts at the drop of a hat.

We'll go a little further into take-down procedures in Part 2. RC

Image credit: wrecking ball by unknown, licence unknown

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