Jeffrey V. Merkey wrote:
Ray Saintonge wrote:
Jeff V. Merkey wrote:
We should act in good faith always. Good faith
means if someone creates
a "cloud of doubt" and they are
an undisputed owner of the materials in question, a good faith action
would be to remove it.
The biggest fly in that ointment is with establishing that they are the
undisputed owner. There are as many misconceptions about that as there
are about fair use. When that has been established it's good corporate
citizenship to remove the material when they ask nicely even if we could
win a court fight over fair use.
If they cannot establish they own the rights to the materials to the
Foundation, then it is doubtful they will be able to
convince a judge of this. An attorney sending a letter or posting a
notice asserting such claims are true is about the
only bonafide proof there is, short of a court ruling. Attorneys are
bound by rules of professional conduct. Falsely asserting copyright
ownership on behalf of a client could get them brought up on allegations
with their state bar. If they are disbarred, they
cannot practice law. Lawyers are not allowed to bill their time to
answer bar complaints, and it could take 6-12 hours or more in
what would have been valuable time they could bill for. If they work for
a law firm, bar complaints can get them in a lot of
trouble. As such, any attorney claiming copyright on behalf of a client
is most probably telling the truth and has done their
homework on the claims.
That's how you tell. When an attorney sends a DMCA notice to the
foundation. At which point, the content should come down.
One of the most important requirements of a DMCA notice is the assertion
of ownership. This can be done by the author, his heirs or a legal
representative; I think that we agree about that. I'm not presuming
that the lawyer in question is trying to make a claim that he knows to
be false.
An honestly erroneous claim should not expose him to the penalties that
you outline. It's easy to imagine a situation where he has been
approached by a client whose legal claims are not sound, but where the
potential outcome is uncertain. He needs to look after his client's
concern. The lawyer's claim is not proof of anything substantive; it's
an opening argument. In most (but not necessarily all) cases the
content should indeed come down, but the ISP should at least revue the
notice to make sure that it is valid on its surface. I also believe
that the notices should be made public in case any editorwants to take
the matter further in his own name, and at his own cost.
Ec