[WikiEN-l] Re: Notice of Appeal of Ban

[Toby Bartels]

David Baltzer (Joe Canuck) wrote in part:

>For the site owner/operator to intervene and ban anyone, they must do so based
>on credible facts, not innuendo.  In the United States, it is a right to carry
>on business, not a privilege, and using an Open website has inherent rights
>under the DMCA because the owner must be passive and cannot interfere.

I have some idea now where JC is coming from in his legal threats.
The DMCA's Safe Harbor provision (§512) protects ISPs
from infringing content.  But the ISP must be passive towards content
(see §512.a, for example).  Since Jimmy is interfering with JC's use,
JC thinks that Jimmy must therefore waive his protections.
(Actually, it's Bomis, Inc., a limited liability corporation,
that would have liability and protections, not Jimmy himself.)
This is simply false as I read the text of the law (although IANAL).

First, we come in not under §512.a but instead under §512.c.
(See §512.n for why we follow only one of these subsections.)
This specifically requires (§512.c.1.A.iii) the ISP
to remove material that it knows to be infringing.
Since Jimmy is CEO (or something along those lines) of Bomis
and has (if only by convention) extraordinary priveleges here
as a direct result of that, then if he knows of infringing material
(and knows that it is in fact infringing), then he /must/
see that it is removed in order to preserve the protection.
This is true regardless of whether the information comes to him
from the copyright owner through the designated agent process
(that's §512.c.1.C and 512.c.3, a separate provision).
IOW, §512.c.3 is what makes him remove the material
when the /copyright owner/ merely /claims/ that it's infringing,
while §512.c.1.A makes him remove the material
when /anybody/ manages to /prove/ that it's infringing.
(Sec 512.c.3.B clarifies the relationship here.)
So passivity is clearly contraindicated.

Of course, the passivity that JC is charging Jimmy with violating
isn't specifically passivity regarding the infringing material itself,
but instead passivity regarding the /users/ of the web site.
Even §512.a (which does not apply to us anyway, since we use §512.c)
doesn't say anything about passivity regarding who is a user.
OTC, §512.i.1.A /requires/ the ISP to terminate the accounts
of "repeated infringers".  If that's the basis for JC's banishment,
then Bomis is, far from /violating/ the DMCA's requirements,
in fact /complying/ with them.

Now, §512.g suggests (but doesn't explicitly provide a cause of action)
that Bomis may face liability, not from copyright owners but from JC himself,
if Bomis removes infinging material and doesn't inform JC about it.
There's even some business about providing JC with the basis for removal.
But since the material was removed in the ordinary course of using the site,
rather than at the express directive of Bomis following §512.c.1.C,
this is not applicable.  True, JC is latching on Jimmy's claim
that he "authorized" the actions of the admins that deleted the images,
but the authorization didn't come from §512, so that's not relevant.
And this is not exactly what JC is demanding anyway;
he's demanding from Jimmy the basis for his /banishment/,
rather than the basis for the deletion of his images.
In any case, this subsection only provides additional protection;
it doesn't /create/ a cause of action for JC to sue Bomis,
which cause of action must come from some other provision in law.

Of course, it's clear why JC's babbling is "quasi-legalistic",
making only vague references to the DMCA and its protections,
rather than citing anything explicitly.  That's because
there's nothing explicit that he could have cited!

It's also worth mentioning, that in case any /real/ threat appears
that Wikipedia isn't correctly following the Safe Harbor provisions,
then placing things under the nonprofit Wikimedia Foundation
should remove all financial pressure from Bomis,
since Wikimedia will own essentially no assets.

The text of the DMCA that I used came from
<http://www4.law.cornell.edu/uscode/17/512.html>.
It's not terribly long (although this is only §512 ^_^).
Those interested in the RIAA's plan to sue individual P2P users
may be interested in reading §512.h.


-- Toby