If you want to challenge a takedown notice, the proper (and only) course of action is to file a counter-notice. I had work that I did on Commons taken down by a bogus DMCA takedown notice several years ago. Instead of complaining to the Foundation, which would have been pointless (as they are bound by the DMCA to comply with even the most bogus takedown notices), I mailed them a counter-notice and the work was restored in short order.
There are several handy online guides for how to file DMCA counter-notices. It is very easy and doesn't require hiring a lawyer. The only catch is that by filing the counter-notice you are putting your money where your mouth is and legally asserting that you have the right to post the work (so make sure that this is correct or you may end up in a lawsuit).
The current situation is completely different than the NPG situation, which involved only bogus threats, not a legally binding takedown notice.
Ryan Kaldari
On 3 June 2010 21:42, Ryan Kaldari rkaldari@wikimedia.org wrote:
There are several handy online guides for how to file DMCA counter-notices. It is very easy and doesn't require hiring a lawyer. The only catch is that by filing the counter-notice you are putting your money where your mouth is and legally asserting that you have the right to post the work (so make sure that this is correct or you may end up in a lawsuit).
Yep! You want to write a first draft of a guide? I'm sure the EFF or someone like that will have something suitable to start with.
We can't have a lawyer employed by the WMF look over it, but we have lots of lawyers amongst the volunteers.
The current situation is completely different than the NPG situation, which involved only bogus threats, not a legally binding takedown notice.
Indeed. If they had issued a takedown notice, someone could have responded with "it's not bogus. I am this person at this address. Make my day."
- d.
David Gerard wrote:
Yep! You want to write a first draft of a guide? I'm sure the EFF or someone like that will have something suitable to start with.
We can't have a lawyer employed by the WMF look over it, but we have lots of lawyers amongst the volunteers.
An important point; we musn't force the WMF lawyer into a conflict of interest
The current situation is completely different than the NPG situation, which involved only bogus threats, not a legally binding takedown notice.
Indeed. If they had issued a takedown notice, someone could have responded with "it's not bogus. I am this person at this address. Make my day."
It really feels good to be able to say "Make my day." More of us should try it.
Ec
On Fri, Jun 4, 2010 at 7:44 PM, Ray Saintonge saintonge@telus.net wrote:
David Gerard wrote:
Yep! You want to write a first draft of a guide? I'm sure the EFF or someone like that will have something suitable to start with.
We can't have a lawyer employed by the WMF look over it, but we have lots of lawyers amongst the volunteers.
An important point; we musn't force the WMF lawyer into a conflict of interest
In cases like this, I think it would help if the WMF lawyers would tell the community, bluntly, that they can't assist the community in the matter, with a quick overview of why they cant assist.
Is that possible without putting WMF lawyers in a tight spot?
-- John Vandenberg
Ryan Kaldari wrote:
If you want to challenge a takedown notice, the proper (and only) course of action is to file a counter-notice. I had work that I did on Commons taken down by a bogus DMCA takedown notice several years ago. Instead of complaining to the Foundation, which would have been pointless (as they are bound by the DMCA to comply with even the most bogus takedown notices), I mailed them a counter-notice and the work was restored in short order.
Mostly yes, but sometimes no. The Foundation should still exercise due diligence before deleting. It should still review the notice to make sure that the notice includes *all* the required elements. Refusing to take down the most bogus claims could endanger its safe harbor status, but it should avoid copyright paranoia.
There are several handy online guides for how to file DMCA counter-notices. It is very easy and doesn't require hiring a lawyer. The only catch is that by filing the counter-notice you are putting your money where your mouth is and legally asserting that you have the right to post the work (so make sure that this is correct or you may end up in a lawsuit).
Absolutely. If more people were to accept responsibility for these materials it would spread the risk most wonderfully. One of our disadvantages is that we have a lot of people totally lacking in daily experience with the law, or whose understanding is based on watching too many cops-and-robbers TV shows. People with some legal experience know that they can push the envelope to some degree; those without that experience are easily intimidated by that.
Ideally, the Foundation is an ISP with no knowledge of the material its site contains until it is brought to its attention. It's perfectly legitimate for it to do absolutely nothing until it receives a takedown notice. To some that may even seem to be an obtuse position. When it receives a takedown notice it must act, and if it chooses not to act that must be an informed decision, not a default. In practical terms it can't help but be shown the most egregious copyright violation. Taking those down is done more as an act of good faith than out of any legal obligation.
Putting your money where your mouth is means to stop treating the Foundation as a nanny. We do far more for the sake of free culture by being willing to challenge bogus or borderline copyright claims than adopting tortured and self-defeating interpretations of copyright law. Failing to stand up to bogus claims encourages them. As individuals we need to have the courage not to pass the buck to the Foundation.
The current situation is completely different than the NPG situation, which involved only bogus threats, not a legally binding takedown notice.
I agree. Dragging in the NPG situation only confuses the present one.
Ec
On Fri, Jun 4, 2010 at 11:37, Ray Saintonge saintonge@telus.net wrote:
The only catch is that by filing the counter-notice you are putting your money where your mouth is and legally asserting that you have the right to post the work (so make sure that this is correct or you may end up in a lawsuit).
Absolutely. If more people were to accept responsibility for these materials it would spread the risk most wonderfully.
The main problem is that people edit WP on their free time as a hobby, and they do not possess large sum of money of their family budget to offer to nondeterministic amount of risk. People are not familiar with the legal process and risk, as you people said, which means they cannot measure the risk either. They most often doesn't even plan to privately pay a lawyer to tell them about it, since it's not a wee amount.
So either we wait until people want to spend their private money to lawyers to define the risk and only accept mostly low risk counternotices, or to enroll to be crash test dummies. Both highly unlikely.
Or we can reasonably expect them to ask for real legal advice from (or paid by) the WMF and _then_ accept the _known_ risk to file a counter-notice.
I do not say we have to do that, only that I believe people won't do it any other way.
Peter
On Fri, Jun 4, 2010 at 8:41 PM, Peter Gervai grinapo@gmail.com wrote:
.. So either we wait until people want to spend their private money to lawyers to define the risk and only accept mostly low risk counternotices, or to enroll to be crash test dummies. Both highly unlikely.
Or we can reasonably expect them to ask for real legal advice from (or paid by) the WMF and _then_ accept the _known_ risk to file a counter-notice.
Another option is for a chapter to engage the lawyer.. or .. as David suggested..
On Fri, Jun 4, 2010 at 6:59 AM, David Gerard dgerard@gmail.com wrote:
.. Yep! You want to write a first draft of a guide? I'm sure the EFF or someone like that will have something suitable to start with.
.. find generic legal advice ... or ...
We can't have a lawyer employed by the WMF look over it, but we have lots of lawyers amongst the volunteers.
.. find a lawyer among the community who can help.
-- John Vandenberg
On 6/4/10 3:41 AM, Peter Gervai wrote:
Or we can reasonably expect them to ask for real legal advice from (or paid by) the WMF and_then_ accept the_known_ risk to file a counter-notice.
The Wikimedia Foundation cannot simultaneously act as an impartial (and therefore non-liable) host and as legal council for one of the parties. John's suggestion is good advice - seek legal council from among the community. In the meantime, I'll try to put together a quick guide for filing counter-notices with the Foundation when I get some free time.
Ryan Kaldari
Peter Gervai wrote:
On Fri, Jun 4, 2010 at 11:37, Ray Saintonge wrote:
The only catch is that by filing the counter-notice you are putting your money where your mouth is and legally asserting that you have the right to post the work (so make sure that this is correct or you may end up in a lawsuit).
Absolutely. If more people were to accept responsibility for these materials it would spread the risk most wonderfully.
The main problem is that people edit WP on their free time as a hobby, and they do not possess large sum of money of their family budget to offer to nondeterministic amount of risk. People are not familiar with the legal process and risk, as you people said, which means they cannot measure the risk either. They most often doesn't even plan to privately pay a lawyer to tell them about it, since it's not a wee amount.
The procedure for putting up a counter-notice is very simple, and costs nothing ... unless you send it by snail-mail and have the cost of a stamp. There have already been excellent suggestions to describe the process in an article on Meta.
A person who is seriously considering a counter-notice will probably have given some consideration to his chances of success, more so than with an original posting of the material to the site. Personally, it would not bother me to post questionable material just to flush out the rights owner of a possibly orphan work. If the owner issues a takedown order you know he exists, and publishing the order insures that that information becomes public whether or not you take the matter any further.
The level of risk will vary with each individual work being considered. Compared to speaking on your cell phone while driving there isn't much risk at all, and even the highest degree of risk is not likely to be fatal.
The permutations of what can happen are endless. If you are in country A issuing a counter-notice regarding a rights claimant in country B granting jurisdiction to a United States court over a site in the US when neither of you are there what's the likelihood that it will ever really get to court? It's going to cost the rights claimant too to go to court. How much is he going to want to invest in time, money and travel to prosecute his case when winning is highly uncertain? He has to pay his money before you do just to get a case filed. I believe that it's much easier to be a defendant than a plaintiff in such cases.
If it gets this far, then what? You could play to win, and maybe get your costs covered if the judge deems the case bogus. You might even get pro bono legal help, or be able to get people to help your defence because they believe in your cause. (If you get more than it cost you, the ethical thing might be to give the excess to the cause. :-) ) Another possibility is that you might concede the case and the plaintiff would get a default judgement. That could result in an order of the court to take down the material, which only puts us back to where we were before you filed the counter-claim. The court could award damages but there are limitations here too. Then, what do they do to collect that money when you aren't even in the United States? In other words most of the difficulties that can be encountered tend to favour the defendant.
You can't depend on the lawyer to evaluate your risk. If he evaluates wrongly you are still the one to pay. Unless you do something abominably stupid the risks will be low, and there are plenty of Wikimedians available that will always be more than willing to tell you when you are being stupid. If you still don't believe that the risk is low, you might as well keep talking on the phone while driving.
So either we wait until people want to spend their private money to lawyers to define the risk and only accept mostly low risk counternotices, or to enroll to be crash test dummies. Both highly unlikely.
That you will accept to file low-risk counternotices shows a glimmer of hope.
Or we can reasonably expect them to ask for real legal advice from (or paid by) the WMF and _then_ accept the _known_ risk to file a counter-notice.
My willingness to accept the WMF as my nanny is on a par with my willingness to accept Jesus as my Lord and Saviour.
I do not say we have to do that, only that I believe people won't do it any other way.
Yes, that fairly represents a very sad state of affairs.
Ray
Hello,
Could someone please explain the following from this page: http://www.chillingeffects.org/dmca/counter512.pdf
1. What does it mean that "I consent to accept service of process from the party who submitted the take-down notice"?
2. In the phrase "Each of those works were removed in error and I believe my posting them does not infringe anyone else's rights." Does it mean "does not infringe anyone else's rights _in USA_"? or everywhere in the world?
Thanks,
Yann
On Sat, Jun 5, 2010 at 6:33 AM, Yann Forget yannfo@gmail.com wrote:
Hello,
Could someone please explain the following from this page: http://www.chillingeffects.org/dmca/counter512.pdf
- What does it mean that "I consent to accept service of process from
the party who submitted the take-down notice"?
- In the phrase "Each of those works were removed in error and I
believe my posting them does not infringe anyone else's rights." Does it mean "does not infringe anyone else's rights _in USA_"? or everywhere in the world?
Thanks,
Yann
Process service is when you are given notification of a suit or legal action. If you've ever heard the phrase "you've been served" - that's what this refers to. In some situations, you have to be notified of the existence of a legal action in order for it to proceed against you.
As for the second part, I'd imagine it means "anyone else's rights" as written - not specific to those that originate in the U.S.
~Nathan
Here's my attempt at trying to answer these.
Yann Forget wrote:
Hello,
Could someone please explain the following from this page: http://www.chillingeffects.org/dmca/counter512.pdf
- What does it mean that "I consent to accept service of process from
the party who submitted the take-down notice"?
Since a counterclaim involves the possibility that the rights claimant may go to court, this simply means that you agree to receive any legal paperwork in connection with such a case. The claimant could then send it directly to you without going through WMF.
- In the phrase "Each of those works were removed in error and I
believe my posting them does not infringe anyone else's rights." Does it mean "does not infringe anyone else's rights _in USA_"? or everywhere in the world?
This would be as determined by US law since you are giving jurisdiction to US courts. The claimant can make that claim from anywhere in the world. Foreign rights could be protected to whatever extent they are recognized by US law.
Ray
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