Frustrated that Ken Follett’s book ‘Fall of Giants’ was not available in Spanish on the Kindle, he posted a blog entry on the topic and linked to a downloadable copy of the work available on a file hosting site. This attracted the attention of CEDRO (Spanish Reproduction Rights Center), a group that represents authors in Spain, which in turn filed a DMCA takedown notice with Ricardo and then with WordPress, which eventually took down the site temporarily and blocked Ricardo’s access.

But what makes this case unusual isn’t WordPress’ involvement, it’s how CEDRO claims to have first contacted Ricardo. According to the story, CEDRO didn’t simply email a takedown notice (or a cease and desist) and, instead, they posted it as a comment to the blog entry and, when they didn’t get a reply, they moved up the food chain.

This story raises a lot of interesting questions about sending DMCA notices (or cease and desist letters as it would more appropriately be in this case) via blog comment forms. Unfortunately for CEDRO, I think the reason it took so long for this issue to come up is because it was such a stupid idea in the first place.

Comment Fail

Back in June, I raised the question whether anyone would be willing to send a cease and desist via Twitter or Facebook. The consensus seemed to be that, though these methods of communication are becoming more commonplace, most aren’t comfortable using them for such purposes yet.

But where Twitter and Facebook come with discomfort in using them for such official capacity, comments raise still more issues.

The problem is that comments on a blog post are not necessarily directed at anyone. Where I can send a private message on Facebook or an @reply on Twitter, a comment on a blog entry is just a reply to the post and not necessarily directed at anyone. It could be at another commenter, the blog author or no one at all.

As such, it’s hard to claim that the notice was actually or effectively delivered. It’s a bit like posting the notice to a public bulletin board near a person’s home and expecting them to read it. While public notice is a part of the law, it’s for cases where the public at large, not a specific person, most be notified of something (name change, certain auctions, etc.).

While cease and desist letters and DMCA notices are not official documents in that they do not need to go through the service process, there needs to be at least some proof of receipt as ignoring these notices can have implications on a potential legal case.

It would be very difficult to prove that someone was given adequate notice with just a comment posted to their blog, especially if it is a high-volume blog.

However, that is just the tip of the iceberg with the problems with this method.

Other Problems

In addition to the obvious issues with serving any kind of notice through a comment form, there are many other reasons why a comment form would be a poor choice for such a notice.

1. Spam Filtering: Though email accounts have spam filters, they seem to do a much better job eliminating false positives than comment ones, making it more likely that such a comment would be junked. Furthermore, you have two spam filters to deal with, the comment one and the email one, meaning that even if the comment goes live, the owner might not be notified.
2. No Authentication: How is a blogger going to confirm who wrote a comment? With so many trolls on the Web it would be easy to dismiss such a comment as not being from a valid source, especially since the means is so uncommon. This makes it less likely the site owner will respond in a favorable way.
3. It’s Public: Though no one should be ashamed of doing reasonably copyright enforcement in the public light, taking matters so pubic, especially right off the bat, basically ensures a more negative response. A polite, private message usually gets the best response.

However, the biggest issue of all is that there was no reason to file with Ricardo at all. The file host involved, MegaUpload, does respond to takedown notices and likely would have removed the work quickly. That would have cut off the problem at the source and not further downstream.

In short, rather than damming a river, they simply tried to dam one of its forks, not a good move to stop the water.

Bottom Line

To me, it almost sounds like CEDRO was trying to pick a fight. I can’t imagine a rights group with as much experience as CEDRO making a decision like this. If it were someone with no experience in enforcement, it would be an understandable mistake but this is a rights group that is no stranger to this area.

What the purpose of this was, I can not be sure. I was able to easily find Ricardo’s address (even I know what “contacto” means in Spanish) and it seems a better resolution was a simple email away. Instead now they have an ugly mess on their hands and the artist’s rights are no better protected.

All around, this seems to be a boneheaded move and one I hope other copyright holders do not repeat.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Las Vegas Copyright Holding Firm Has First Infringement Case Dismissed

First off today, Righthaven, the firm which has purchased rights from the Las Vegas Review-Journal to sue those reusing its articles online, has suffered its first defeat. Area realtor Michael Nelson successfully got Righthaven’s lawsuit against him thrown out on the grounds that his use, which included only a few lines from the article on his promotional site, was a fair use. The judge in the case agreed with his arguments and dismissed the suit out of hand, before letting it reach a jury. According to those following Righthaven’s activities, this is the first lawsuit they’ve lost.

2: Accused Pirates to Indie Filmmakers: Sue Us

Next up today, many of those targeted by the U.S. Copyright Group, which files lawsuits and sends subpoenas for various independent film makers, may be facing its first set of legal challenges as many aren’t paying up and are asking to be sued. The firm behind the USCG said that it is more than happy to comply, possibly sending many of its cases into court. Many believe that a large number of legal challenges could drain the profits out of the system the USCG follows but the company does not appear to be worried, saying it will “farm out” litigation.

3: I Just Received a Cease-and-Desist Order from Square Enix

Finally today, 1am Studios, the company largely behind an open source, fan-driven remake of the videogame Carmageddon has been served with a cease and desist by Square Enix, the holders of the copyright in the game. This is not the first time Square Enix and fans have clashed as, in May of 2009, the company filed a similar cease and desist against a fan modification of the popular Chrono Trigger role-playing game. However, in this case the fans are not so easily bowed as the project has been renamed OpenC1 and is being redone without any intellectual property from Square Enix. There is no word on a release date.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

In December 2008 an Australian court allowed an attorney to serve legal papers to a couple via Facebook. The case revolved around missed payments on a loan and the move was only allowed after the lawyer had been unable to contact the couple via more traditional means.

Almost a year later, in a case involving an alleged impersonator on Twitter, a UK court allowed legal papers to be served via a tweet, once again after all other means of contacting the person had been exhausted.

It is clear that social networking has changed the way we communicate with one another and that change is filtering down into how we pass around legal documents.

Though email is now a relatively accepted way to send a legal document, though not necessarily to formally serve one due to the lack of reliability, will Facebook and Twitter reach a similar level of acceptance? It seems unlikely to me, but I am eager to hear other’s viewpoints on this.

So would you send a cease and desist notice via Facebook or Twitter? My (brief) thoughts are below.

My Take

Personally, I feel the method of delivering any warnings or other related letters should be appropriate for the case. If someone were infringing copyrights on Twitter or Facebook, I would at least consider using their built-in messaging systems to deliver a notice, albeit with my tracking to determine if the note is read.

But even in those cases I would view it as a last resort. Though email may not be much more reliable (perhaps even less reliable) it certainly is treated with a higher level of respect and seriousness. Though I’ve conducted business, including negotiating deals for writing contracts, on both Facebook and Twitter, most business takes place over email, phone and fax, even today.

Part of this is for paper trail reasons. Facebook and Twitter are centralized services where there is one copy of every correspondence saved. With email, you have your copy of an email and they have theirs, likewise for postal mail. This lack of an independent paper trail makes me nervous about sending anything that could become involved in a legal dispute as the existing copy can be altered or destroyed on accident or maliciously by the intermediary.

I would not use Twitter or Facebook to handle copyright infringement matters unless the services were relevant to the infringement and there were no other practical alternatives. However, I also recognize that I may be showing my age a bit so I’m eager to see what others think, including those who are more comfortable with Facebook and Twitter as a communications means.

To date though, I have not had any reason to use either service to deliver a cease and deist letter. If email, postal mail, fax and courier are all not possible, I’ve never had Facebook or Twitter as a viable alternative.

In short, I can see little reason to consider using these methods for sending anything intended to be taken as seriously as a cease and desist, but I fear that I may be living behind the times.

Your Thoughts

I’m eager to hear what you think in this issue. Would you send a DMCA notice via Twitter or Facebook? If so, how would you do it to ensure proper delivery and that you had the required records on your end?

Feel free to leave a comment below or drop me a line with your thoughts.

Safe Creative has been expanding its services like mad recently. It was just two weeks ago I reported on their addition of multiple author registrations and a new automated registration tool. Now, Safe Creative has made an additional announcement, this one dealing with three new features they have added, RSS integration, cease and desist letters and the ability to let others ask permission to use your work.

All three of these features are “professional services” that will be charged for in the future but are free to use now while the services are in beta.

Though Safe Creative is primarily a non-repudiation service, meaning that they offer third-party verification of your ownership of your works, these services may be very compelling to those who are wanting to get more robust use out of Safe Creative and wish to use it as a full rights management service, and not just a non-repudiation one.

So how well do they work? We’ll take a look at them one at a time.

RSS Integration

The idea behind RSS integration is simple, rather than forcing members to register each feed item by hand, Safe Creative will check your feed on a regular basis and register each of the items for you. This saves time and energy as well as making the registration process more reliable.

The process of setting up RSS integration is fairly simple. You first have to activate the feature by paying five “credits” (which are obtained for free during the beta phase) and then give the feed information, including the name of the feed, the URL of the feed and the original site and the options you want it registered under.

Once that information is put in, you then have to confirm that the feed is yours. This is done by adding a special code to your Web site, which can either be hidden in the HTML code itself or as part of a link or badge (the HTML code for the latter two is provided). Once done, your feed entries should automatically start being registered with the service, starting with the ones you have in your feed when it was set up.

Once validated, the service seems to work pretty well. There seems to be about an hour delay or so before their RSS reader picks up the post, which may hinder its usefulness against some RSS scrapers, but it is definitely faster than the alternative, MyFreeCopyright, which only updates daily.

Everything worked as advertised. I decided to allow my works to stay “preregistered” for a 24 hours and I get nightly emails letting me know that the posts from that day were preregistered and the ones from the day before were formally registered.

It may not be a perfect solution but it does work very well and is the best free alternative available.

Cease and Desist Sending

Entitled “Work Incidents” in Safe Creative, the ability to send a cease and desist letter has also been added.

Once enabled under “Professional Services”, the process works very simply. In your Safe Creative account, you find the work that is being infringed and select “Incidents”. From there you open up a new case and input information about the case including a name and description for your records, contact info for the alleged infringer and where the infringement is taking place.

Once you’ve done that, you get a chance to preview the message before it is sent out. However, you can not make any changes or modifications to the letter. Even more strange is that the letter itself appears to come from Safe Creative, including their logo and signature line, though it lists you as the complaining party in the body.

Personally, I think this is a service that needs to be tweaked before it becomes truly useful. The functionality is very basic. I can’t find a way to upload my template for a C&D notice and there is no way to use this to also send DMCA/EDEC notices. Furthermore, with all the Safe Creative branding, it seems as if Safe Creative itself is sending the complaint, opening up the door for confusion.

The only added feature is the ability to store notices as a draft or resend notices that don’t work. However, there is currently no means of escalation.

Though the idea is there, this is one feature that I’m not enthused about in its current form.

Permissions Request

Finally, Safe Creative has also enabled a feature that allows rights holders to let visitors request special permission to use their works. This is, in part, a response to my article on a “Reverse Creative Commons” system which asked for a structured system for requesting permissions for work similar to what CC does for giving permission.

However, the system is fairly basic at this time. Once you’ve enabled the service, you have to go back and add it to your works individually, which can be a huge headache if you have already registered a large volume of content. The good news is that you can alter your registration profile to make sure all future works have this feature turned on.

From there, anyone who visits your Safe Creative page for a work with this enabled will be able to click an icon to request permission and will be taken to a screen similar to the one below:

Safe Creative then messages the information about the planned use to the rightsholder who then is given the option of approving or disapproving the use.

Unfortunately, the system requires that both sides be Safe Creative users, which is unlikely that a stranger asking permission would be using the service. Though it only takes a few moments to sign up for the service, it is easy to see how this extra hurdle might create a barrier for casual users.

All in all, other than the need to be a Safe Creative member, which was likely done for the purpose of validating the people who request permission and having a “chain of custody” over the permission request, the system is solid and simple. I found using it from the requester side to be unintimidating and straightforward though it is a bit of a kludge to apply to existing works from the creator side.

Bottom Line

All of these services are big steps forward for Safe Creative but I think it’s clear that they are all in beta stage and have room for improvement.

The RSS integration, in my view, is the real star at the moment, making Safe Creative practical for bloggers and causing it to leapfrog other services when reaching those content creators. The cease and desist feature is lacking in features though it shows a great deal of promise. Finally, the permission request system is a huge step forward but needs better integration with creator’s sites and less with Safe Creative before it will be widely used.

Still, this is the kind of innovation I’ve wanted to see from non-repudiation services and it makes me very happy to see Safe Creative marching forward. I’ll be eager to see how other services respond to this and how these services with grow both in features and usability in the coming months and years.

photo credit: rindsey

A recent comment by Cybele reminded me of an article I wrote in 2006 entitled “Cease and Desist: A Dying Art“.

The article lamented the cease and desist letter was using its usefulness when dealing with copyright infringement issues, giving way to DMCA and other forms of host contact. At that time, less than a quarter of all my plagiarism cases were handled by direct contact with the alleged infringer.

However, it seems that the trend has continued to work against the cease and desist. Social networking, blogging and spamming have combined to make such direct contact almost impossible. Though I remain a big proponent of direct contact, it has become such a rarity that I can almost not remember the last time I successful worked directly with an infringer directly.

This has me both saddened and deeply worried.

There are ways to fix these issues, but it will take a shift in the Internet itself, something that isn’t likely to happen any time soon.

Cause of Death

In the eight years or so since I have started dealing with plagiarism issues, the Web has changed in drastic ways, many of which make personal contact very difficult to achieve. Specifically, there have been three issues that caused the cease and desist letter to gain dust in most people’s anti-plagiarism arsenal.

1. Social Networking: Though social networking doesn’t create a walled garden of content, meaning that it is possible to detect plagiarism or copyright infringement that takes place on most such sites (Facebook being an exception), they do create a walled garden of contact, making it so that you have to sign up for an account, friend the user and then use their custom messenger to reach out to them. On the most basic level, this is time consuming but it is also very legally dangerous as you have an uncertain paper trail in the event of a dispute.
2. Spam Blogging: Spammers have become some of the most common and most dangerous infringers but they also go to great lengths to keep their identities and contact information hidden. Furthermore, if you do manage to reach them, odds are they will not respond as they have little to gain by complying.
3. Fear of Email Spam: As email spam has taken off, Webmasters have become more cautious about putting their addresses on their sites. Bloggers are routinely advised not to put their email address on their site, obfuscated or not, and most seem to focus on driving people to other means of contact that carry other rewards. Whether it is about adding followers on Twitter, friends on Facebook or buddies on IM, email has fallen out of favor. This is compounded by domain privacy services, which this site does use, false whois information and people opting for hosted blogs instead of their own domain.

As such, a surprisingly small number of sites I approach actually have contact information for Webmaster and, those that do, the information routinely turns out to be incorrect. The few times I have made an earnest effort in recent months have all been thwarted by outdated information or stoic silence.

Why This is Bad

At first glance, the DMCA might seem to be preferable in every way. It is faster, standardized, easy to use and takes only a few moments. Best of all, it is amazingly reliable on most sites.

However, cease and desist letters provide some potentially powerful opportunities. First, they provide the chance to educate users about copyright and encourages infringers to handle the problem themselves. Many times infringement is a mistake, not an act of malice and this helps to provide new information and ensure that the person will not repeat the error.

More importantly though, where a DMCA is nothing but a takedown, a cease and desist provides an opportunity to keep the work up, but with proper licensing. If you use a Creative Commons license, for example, this lets the infringer fix the problems with their use and bring it up to code. This encourages not only good content use, but also linking in general, creating a symbiotic relationship.

It is to everyone’s advantage if copyright holders and infringers can work out their differences face to face, but only if it can be done quickly enough to make it worthwhile. Too much effort, and it becomes easier to file the DMCA and move on.

Exceptions to the Rule

There are a few exceptions to this rule, one of the main ones being Web 2.0 companies that may misuse content as part of their service. Sites such as Shyftr were blasted for their content reuse policies but, in at least some of the cases, have been able to resolve their differences with content creators and rebuild their service to everyone’s benefit.

However, this only works for legitimate companies with a real interest in working with copyright holders. Sites that have no such interest and are just seeking to make money in the gray area between aggregation and spamming will not cooperate.

Those sites, sadly, do demand a DMCA notice or other such action to stop the misuse.

Solutions

Fixing this problem is going to be tricky to say the least. There are two possible ways in which the Web could change to make cease and desist letter more practical again.

First, email could make a comeback as a means of communication. Though we are sending more email than ever, it is clear browsing around the Web that many, if not most, people prefer other means of contact. Though services such as Gmail have gone a long way to making email more fun and usable, many still can not wait until the service falls into obsolescence.

The second possibility is that another service, much like email, will rise to make such communication easy again. With social networks trying to open up their doors more and even interact with one another there could come a time when one sends a private message to another user from their native account, even if they are on two different services. Though the result would be extremely email-like in nature, it would fit more comfortably with the social networking scheme that is developing.

However, neither of these things are likely soon and neither would help deal with spammers or others that don’t wish to be found, but it could help with bloggers and others that have a sincere interest in doing the right thing.

Conclusions

It is strange to think that, in this age of near-instant communication with anyone, anywhere, that we are finding it harder and harder to reach out privately to strangers we have an issue with. However, this is exactly the case.

The implications of this problem go far beyond just copyright and plagiarism issues. It is something of a great social experiment where we seem to resolve almost all of our disagreements in the most public of the public spheres and the results have not been that impressive.

If there is one thing that I would change about the Internet, it would be this rush to air grievances out in publicly, to attack others publicly while hiding behind a veil of anonymity and forget that there are people at the other end of every communication we send out.

It’s a tall order, but I do think it would make the Web a better place.

This week, in the time since we recorded the podcast, some very important information came to light regarding one of the stories, the issue of cease and desist and copyright. I covered the issue in more detail above as part of my Blog Herald work and would encourage anyone to read that before listening to the podcast as the article is much more up to date.

Otherwise, it was a normal week as I sat down with Chris Matthieu from Numly to discuss the past week in copyright news, views and abuse. This week was probably the most complicated week I’ve seen so far, bringing to the table a total of sixteen stories.

This week’s stories include.

• Scientology is Under Attack
• Cease and Desist Letters Allegedly Retain Copyright Protection
• Warner Music Sues Seeqpod
• Starlite Goes Dark
• Author Claims Pirated eBooks Can Help Sales
• And Many more…

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

[audio:http://media.libsyn.com/media/plagiarismtoday/copyright20eps43.mp3]

In both cases the updates were relatively minor in nature but both chapters required some work to bring them back up to code.

The contacting the plagiarist section received a new subsection about when not to attempt such contact, with information about spam blogs and social networking sites.

The Contacting the Host page received some HTML reformatting and was edited to mention notice and takedown laws in other countries as well as streamline the process for dealing with U.S. hosts.

In addition to those changes, I’ve embedded the previous “Finding the Host” video into the Finding the Host page so those new to the site will find it easily.

If you have any questions about these updates or see any other possibilities for improvement, please let me know!

However, he probably didn’t expect any of that attention to be in the area of copyright. Trademark and defamation perhaps, but not copyright.

But that is exactly what has happened to him and the blame is not on him or anything he posted on his site, but rather, an overzealous attorney who tried to use copyright law to stiffle completely legitimate free speech.

The result is that what started as a cookie-cutter defamation issue has now evolved into a copyright controversy that borders on being a laughingstock.

The Story So Far

On September 9 of this year, Leonard received a letter from the law firm Dozier Internet Law, P.C. regarding issues of alleged defamation. The attorney, Donald E. Morris Esq., was representing DirectBuy (noisy site), a “buy at home” company that has received many bad reviews on Leonard’s site.

On the surface, it seemed to be just another defamation dispute. DirectBuy took issue with some of the reviews on Leonard’s sites and demanded that they be taken down and that DirectBuy be compensated for costs. This type of dispute, unfortunately, happens pretty regularly.

But it is the last paragraph of the long, legally dubious, cease and desist letter (PDF) that has gotten the most attention. There, Morris said the following:

“Please be aware that this letter is copyright by our law firm, and you are not authorized to republish this in any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.”

In short, in an attempt to keep lid on the actions of DirectBuy and their law firm, Morris threatened to go after Leonard for copyright infringement if he posted the letter.

Fortunately, Leonard was unbowed and he sought the counsel of Public Citizen, a non-profit consumer advocacy group. The group posted the letter on their site, in direct violation of Morris’ order, and also posted a strongly-worded reply to it.

What happens next remains to be seen.

The Copyright Issues Within

There is little doubt that a cease and desist letter is protected under copyright law. It is a creative work of expression, this one more perhaps creative than most, and is fixated into a tangible medium of expression. It certainly is protected and the fact it is a cease and desist letter does not change that.

However, posting a cease and desist letter also has a very strong fair use case. Consider the four factors for a moment:

1. The use would be for commentary or criticism of the actions of the party. It would also be likely considered transformative as it would be a part of a larger work criticizing the sending of the letter.
2. A cease and desist letter would be likely considered unpublished, affording it at least some protections.
3. One would likely be using the whole work though Morris’ threat specified “in full or in part”. Using the full work would be a minor strike against fair use, using just part of it wlikely would be a strike for it.
4. Since the work has no commercial value, the market for it can not be damaged. Though I suppose one could use the cease and desist to create a template and sell it, that would be a stretch and it doesn’t seem to apply well to this case.

Granted, it is completely impossible to tell whether or not a use is fair until a judge and/or jury get ahold of the case, but considering the two most important factors, the first and the fourth, strongly favor fair use and the secondary factors, the second and third, only slightly favor infringement, it seems at least likely that the use would be found fair.

Other Hurdles

Of course, a fair use defense assumes that the case even makes it to court. The odds of that happening are slim to none.

First, in order to sue in a Federal court, the letter will have to be registered with the United States Copyright Office. That is unlikely to be the case right now and it seems unlikely that they will take that step in the future. Furthermore, if they do register later, they will only be able to claim statutory damages that occurred after the submission.

The second problem is that, even with statutory damages it would likely not be financially viable. Without being able to prove that the infringement was willful, damages will be at the very low end of the spectrum.

Finally, I doubt any judge or jury would allow copyright law to be used a club to silence free speech. Companies may try, but when the cases go to court, there is a very strong record of courts coming down in favor of the little guy.

Furthermore, even if DirectBuy and Morris make good on their threat to take the case to another country, the odds of them being able to collect on any judgment are slim to none. Any positive ruling in Canada or elsewhere would be, at best, a pyrrhic victory.

Conclusions

Although I am a big of a supporter of copyright protection (within reason), I am an even bigger supporter of free speech rights.

Using copyright law to club free speech only hurts both free speech and copyright. Not only does it hurt your case legally, but it also hurts copyright law in general by turning public opinion even farther against it.

In short, if you get a cease and desist letter and feel the need to post, seek out legal counsel and follow their advice. Odds are that there aren’t any major issues with it, but it would still be better to be safe than sorry.

On the other hand, in something that relates to readers of this site, if you send out cease and desist letters, don’t put anything in there you don’t want posted on the Web. There is little stopping someone from posting such a notice with relative impugnity. Chilling Effects already posts DMCA notices on their site with few legal issues and others can likely do the same.

The bottom line is, when you out there, defend your rights but always be one of the good guys. Don’t do anything you would be ashamed of the world knowing about.

After all, it is a public Internet and word has a way of getting around.

Hat Tip: William Patry
Special Thanks: Blog Law Guy for his input

What I’ve done is recorded and uploaded a modified version of a presentation that I gave to the Virtual Assistant Revolution group in September that goes over the basics of preventing, detecting and stopping plagiarism on the Web.

It is a lengthy presentation, this version clocks in at about an hour and twenty minutes, but it provides at least a decent overview of the issues at hand. It doesn’t go into much detail into any one issue, but offers fairly broad coverage of the needed topics.

The video is embedded in this post below the fold and is available directly from Revver. If you wish to embed it into your site or blog, please feel free to do so.

Also, I am taking requests for future videos. From here on out I plan to create much shorter videos, under ten minutes in length, that demonstrate demonstrating various aspects of fighting plagiarism. I am taking suggestions or requests for these upcoming clips.

Finally, my thanks goes out to the Virtual Assistant Revolution forum. They were a great group and I thoroughly enjoyed speaking to them. They were also very generous in allowing me to use this presentation in this manner.

I hope you enjoy the presentation and find it useful.

Though the criticism of hosts is a little more fair since they were one of the parties pushing for the notice and takedown provision, the fact remains that the DMCA notice and takedown provision is complicated and, for most people, difficult to use.

Without a good stock letter, most people find it nearly impossible to file a complete DMCA notice and most hosts provide little to no assistance with the process.

To illustrate that problem some as well as explain why hosts make mistakes with the DMCA and why so many submitted notices turn out to be invalid, I’ve decided to create a game. This game will test your knowledge of the DMCA by giving you three notices, only one of which is valid.

You have to pick the right one.

The rules and notices are below the fold so keep reading and post your answers in the comments.

The Rules

The rules are simple, there are three notices below in RTF format. They have different structures and styles but only one of them is complete. To win, all you have to do is post the correct answer in the comments and then explain, briefly, why the other two are invalid.

If you can do that first, then you win no prize at all other than my recognition and, if you wish, your link at the top of this article.

However, there are a few rules before we begin:

1. No Cheating: Keep your eyes on your own paper. Ideally, you should be able to do this from memory. However, if you need help, all you need should be on Plagiarism Today. No searching other sites for the answer. We are all on the honor system here.
2. No Lawyers: This is for laypeople. Sorry. That kind of advance knowledge is just cheating for this quiz.
3. No Spam Sites: I reserve the right to not link to any site that may be spammy or inappropriate. Keep the sites clean, spam-free and appropriate for Plagiarism Today.
4. I Didn’t Cheat Either: Both of the invalid notices have material problems with them. Since they all report the same “infringement” there are no fair use or other legal questions. There are also no issues of semantics. This should be cut and dry and the reasons are based upon the law itself, not what an individual host *might* accept. (Hint: I don’t cheat, but I do use red herrings.)
5. Have Fun: Though not a rule, it is still important. This is a game so have fun with it, just remember it highlights an important point.

If no one guesses the answer correctly in 24 hours, I’ll post it tomorrow as part of my regular update. If this goes well, I might do similar contests on a regular basis.

Please let me know what you think.

The Notices

If you are ready to play, here are the three notices in RTF format:

DMCA Notice #1

DMCA Notice #2

DMCA Notice #3

Open up each file, take a look at them, pick out the one that is correct and explain why the other two are not.

Once again, the first person to do will be given a link at the top of this article and the eternal praise of all who read this.

Have fun and put yourself in the host’s shoes when looking at these notices. This is what they deal with every day.

Conclusions

Web hosts asked for the DMCA and were some of the biggest beneficiaries of the notice and takedown provision. It removed copyright liability from them and gave them a legal system to remove works that were infringing while removing them from the requirement to search for potential copyright violations.

Regardless, the DMCA is a difficult law to use and it is the responsibility of the host to make sure the notices they receive are valid. However, this is designed as a minor illustration to show what they are up against when reviewing such notices and what submitters are up against when trying to create one.

What is needed is a unified, binding DMCA notice that is easy to use and easy to check. This could weed out many of the errors that come with trying to use/enforce the DMCA and, when combined with hosts who are more savvy about copyright law, could prevent many of the DMCA abuses.

In the meantime though, it is problems like these that we are stuck with and left to figure out.

Good luck to everyone.

(Note: If I made a mistake, I apologize. WordPress was being difficult with uploading and it is hard to work on three separate files like that at once. I checked them before and after I uploaded so there shouldn’t be a problem, but this post turned out to be far more difficult than I thought it would be. Please accept my apologies in advance if there are any errors.)