[Foundation-l] Texts deleted on French Wikisource

[James Alexander]

On Mon, Jun 7, 2010 at 6:58 PM, Ray Saintonge <saintonge at telus.net> wrote:

> 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
>
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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.

James Alexander
james.alexander at rochester.edu
jamesofur at gmail.com