On Mon, Jun 7, 2010 at 6:58 PM, Ray Saintonge <saintonge(a)telus.net> wrote:
On 7 June 2010 19:21, Ryan Kaldari
I've added a new section on DMCA compliance
to both the en.wiki and meta
Office actions pages:
Please feel free to augment with additional info.
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
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
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.
foundation-l mailing list
Well a counter-notice basically requires them to allow it to be republished
under the law. I'm not sure we want to require the community to restore
something that they deleted on their own accord. I think the appeal for
those would and should be within the community itself. There is nothing of
course that says that they can't take a sworn statement from the uploader
that they have the right to upload it into account though.