[Foundation-l] Texts deleted on French Wikisource

Ray Saintonge saintonge at telus.net
Fri Jun 4 09:37:03 UTC 2010

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 

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.


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