Monday, March 10, 2008

EFF warns about practical problems of DMCA for ordinary speakers

Electronic Frontier Foundation has an important summary discussion “IP and Free Speech,” again reminding speakers and webmasters of the practical difficulties posed by overzealous implementation of copyright laws, and of the “invitations” for take-down notices that the “safe harbor” provision of the Digital Millennium Copyright Act of 1998 (actually it’s a supplement, the “Online Copyright Infringement Liability Limitation Act” (OCILLA)) offers. The “safe harbor” offers ISPs and webhosts immunity from liability when they comply. In theory, they are supposed to offer the speaker the opportunity to restore speech shown to be non-infringing; in practice they may have little economic incentive to cooperate with speakers.

It’s understandable that there is a bit of “low pressure” in this problem. ISP’s need to be profitable, in a competitive market and in an economy now that is turning more difficult due to external factors. If they offer large bandwidth and disk space for low cost (and they, in general, do), they will say that they do not have the resources to thoroughly investigate arcane and convoluted copyright claims and defenses.

EFF also points out that similar practical difficulties may exist with trademark law and domain names, especially since the passage of the Trademark Dilution Revision Act of 2006, which is covered on another blog. The law, taken literally, still gives considerable protection to non-commercial domains and to domains set up for parody; in practice, small speakers might have trouble defending their rights. ICANN, however, is supposed to have an inexpensive procedure to arbitrate domain name disputes and has always had a “good faith clause” in its own policies.

The EFF link is here.

A related concept that is well to know about is “Strategic lawsuits against public participation”, of SLAPP’s, discussed here.

I have a fact sheet on the DMCA here.

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