[Foundation-l] Texts deleted on French Wikisource

[Ray Saintonge]

geni wrote:
> On 7 June 2010 19:21, Ryan Kaldari <rkaldari at wikimedia.org> wrote:
>   
>> I've added a new section on DMCA compliance to both the en.wiki and meta
>> Office actions pages:
>> http://meta.wikimedia.org/wiki/Office_actions
>> http://en.wikipedia.org/wiki/Wikipedia:Office_actions
>>
>> Please feel free to augment with additional info.
>>
>> Ryan Kaldari
>>     
>
> The claim "The Foundation is required by law to comply with such
> notices even if they are spurious" isn't correct. I assume you meant
> to say "The Foundation is required by law to comply with such notices
> even if they are spurious if it doesn't want to lose it's safe
> harbour" and even there I'm not sure the loss of safe harbour status
> would be universal.
>
>
>   
I have just changed the word "such" in the above to "validly 
formulated".  Unless the notice complies with all the elements required 
by the law it is not a valid notice.  A notice would include "A 
statement that the information in the notification is accurate, and 
under penalty of perjury, that the complaining party is authorized to 
act on behalf of the owner of an exclusive right that is allegedly 
infringed."

There is an interesting question that comes out of this discussion: Is a 
take-down notice a necessary pre-condition to issuing a counter-notice?

I see nothing in the law making this a requirement.  The only thing that 
seems to support it is a kind of popular logic.

Many things are removed by admins in what they believe to be a 
good-faith compliance with the strict wording of the law.  There is 
often no mechanism for appealing legal interpretations within the community.

As an example consider an orphan work last published in the United 
States more than seventy years ago.  It would at first glance appear to 
qualify for the shorter libraries and archives rule for republication.  
When it appears at wikisource there is a discussion that results in the 
material being removed as a copyright violation. The actual rights owner 
or his legal agents have never been a part of the conversation.

In my analysis it would be perfectly correct to issue a counter-notice.  
The claim that there was a mistake would be simply based on the fact 
that there was no valid takedown notice.  If we are talking about an 
orphan work there would be nobody to begin the kind of legal action 
envisioned. If there was no formal takedown notice the Foundation 
clearly cannot notify that person, and would be obliged to restore the 
material within the usual time frame.

The case of a seventy-plus year old orphan work is just one example 
where this could be a useful procedure.

Ray