As copyright holders have gotten more and more active in sending DMCA notices and enforcing their copyright, a lot of services have come forward to make the process a little bit easier, including several copy and paste DMCA generator services that aim to make preparing a notice as simple as filling out a short form on the Web.

While this is more than feasible because most of the content of a proper DMCA notice is stock language, it doesn’t necessarily man that using one or more of these services is a good idea.

So, with that in mind, I decided to take four of the top services and put them to the test, looking at how easy they were to use, how complete the notices were and how much time they actually saved in the DMCA filing process.

My results are below:

Disclosure: I send DMCA notices on behalf of customers as part of my consulting work, including my partnership with WhoIsHostingThis.

3DRunTime DMCA Generator

Created by Walter Victor and hosted on 3druntime.com, a site that specializes in 3-dimensional rendering artwork, the 3DRunTime DMCA Generator is a fairly standard copy and and paste DMCA generator that also emails your form for you.

Ease of Use: Overall, the form is very easy to use, if not the prettiest to look at and it does offer the added convenience of emailing the notice for you when you provide the email address to send it to. However, the form is unable to send a notice for more than one work at a time meaning that, if multiple works are involved, which they often are, you have to send the notice again and again.

Completeness & Professionalism: The sent notice is very attractive and is a complete notice though that meets all of the requirements of the law. My only gripe is that I find it odd it says “Dear (Domain Name):” in the salutation, which is odd when you are sending it to the host of a site and not the site itself.

End Result: All in all, it’s a solid generator if you have just one item per notice to file for. The convenience of having it emailed seems small but can be big if you’re sending out notices in succession. The notice I mailed myself did not get caught in my spam filters, which is a positive sign as well.

DMCAGenerator.com

The most bare bones of the generators on this list, DMCAGenerator.com is literally nothing but a white page with a form and a few ads. However, little else is known about this generator as there is no ownership information on the site and the domain information is set to private.

Ease of Use: Despite it’s stripped-down look, this site is far from simple to use. The address box, for example, requires entering a lengthy postal address in a small textbox and has no indication that it also needs the city, state and zip. Likewise, it is unclear if the URLs are meant to be separated by commas or line breaks. Though an instruction page explains these issues, it’s easy to miss as it is hidden as a “here” link in the body text of the main page.

Completeness & Professionalism: The notice that is prepared does not include title information for the works you’re filing for, creating a problem if the host feels they can’t adequately identify the work involved. Many hosts will NOT accept DMCA notices without this info. Otherwise, the notice appears to be complete though it is displayed, more or less, in plain text, leaving it to you to format and send.

End Result: I can’t recommend using this notice generator. Though it does allow you to file for multiple works, the lack of title information limits the number of hosts that will likely accept it. Furthermore, the way the form is set up is confusing and there are simply better generators out there.

Website Publisher’s DMCA Generator

A feature of the Website Publisher forum, their DMCA generator works with a database the site maintains of DMCA agents, one, according to them, that has over 3,000 companies. This enables Website Publisher to generate DMCA notices specific to each host rather than just blanket ones for all.

Ease of Use: Website Publisher first requires you to join their forum to use this generator. That, in turn, requires passing at least three different “human tests” and filling out all of the needed information. Once you get to the form, you then have to search for the company you want to send the notice to. If the company isn’t in the database you first have to fill out their information and create the company profile and then you get a fairly standard DMCA “fill in the blank” form.

Completeness & Professionalism: The notice that’s generated is reasonably complete though it seems to be targeted more at mailing notices in rather than emailing them and it omits URLs for the original content, something that some hosts do require if it is available. However, the way it handles signatures, letting you upload a scanned image, create a digital signature or simply leave a blank, is very useful and resolves some of the thornier DMCA issues.

End Result: It’s a great idea but I did several searches for the most common hosts I work with and only found GoDaddy in the database. It could be an issue with the search feature (Is that 1 and 1 or 1and1?) but there are simply too many hurdles between landing on the page and sending the notice to make it efficient, especially considering most hosts take blanket DMCA notices fine.

SFWA DMCA Generator

Created by the Science Fiction Writers of America, the SFWA DMCA generator is a simple form intended for use by authors to send notices over works of theirs that have been infringed.

Ease of Use: Very straightforward and fast to use. However, only is able to handle one item of infringement per DMCA notice, meaning you have to generate multiple forms if there are multiple works involved. Also, emails the DMCA notice to you rather than displaying it on screen and their notices to me ended up being trapped in my spam filters.

Completeness & Professionalism: The notice is complete and relatively straightforward. However, it is worded so that it is solely useful for authors as it designates the work as either a short story, novel, poem, collection or article. As such, it is not very useful for visual artists or musicians.

End Result: Despite being easy to use and complete, it’s only useful for authors of text works who are dealing with a lone item of infringement per notice. Sadly, that’s likely a very small group. Most will probably benefit more from either using a stock letter or another service.

Bottom Line

Though all four of the generators I checked had things I liked about them, none felt like complete solutions to generating DMCA notices.

Even my favorite of the four, the 3D Runtime one, is hamstrung by its inability to send a notice for more than one item. Others, like DMCAGenerator.com, were both confusing and had problems with the notice itself that might limit acceptance.

However, the bigger problem is that I fail to see how these generators really save that much time over just having a good stock letter handy. They essentially serve the same function. In my experience, the hardest part of sending a DMCA notice has not been the preparation of the notice, but finding who to send it to and that’s something only one of these generators, the Website Publisher one, attempts to help with at all and only in a limited way.

So, as fond as I am of some of these and of the idea of simplifying DMCA creation, I’ll be sticking with my stock letter for the time being. Not only do I have the process down comfortably, but the notice itself has been tried and tested many hundreds of times, giving me a great deal of confidence in it.

However, if someone wants to create a DMCA generator using my letter, they are more than free too so long as they comply with my Creative Commons License.

This is something of a bittersweet episode of the Copyright 2.0 Show as Chris Matthieu, the usual co-host of the show, will be taking an extended leave of absense following this episode. In his place will be Patrick O’Keefe of the iFroggy Network.

Goodbye’s aside, it was still a very busy week for copyright news with a a lot of major stories including a conclusion to the Google Book lawsuit, one that literally dates back to the beginnings of this site, and tons of other stories.

All in all, there were seventeen stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• Google Settles Book Search Case
• Redbox Accuses Universal of Foul Play
• More DMCA Notices on Private Videos
• Conflicting Views of “Making Available”
• Unnecessary Censorship Strikes Weird Al
• 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

Previously, sending a DMCA notice from Gmail involved using a template stored on your computer and either pasting it manually or using a text expansion program such as Signature, Typinator or others.

With the new Canned Responses feature, the DMCA notice, as well as your cease and desist letter, can be stored within Gmail, making it easy to file a notice from any computer that you have access to.

How you do that is surprisingly simple, all you need is access to a GMail account (Not a Google Apps one sadly) and a good stock letter.

Step 1: Turn on the Canned Responses Feature

Log into your Gmail and click on the green icon at the top to access Gmail Labs.

Then scroll down and turn on Canned Responses

Once you’ve clicked enable, scroll down and click “Save” to make it available it in your account.

Step 2: Paste Your Text into a New Email

Open up a new email and copy your stock letter to the clipboard. Then, paste the letter into your new email, being careful to overwrite your signature if you do not want it to appear when you send out a DMCA notice.

Also, be certain to add the subject line you want to use, something akin to “Notice of Copyright Infringement” works best.

Step 3: Save as a New Canned Response

Save the notice as a new canned response, it will automatically insert the subject as the title but you can change that at the next pop up.

Once you’ve done that, your canned response is ready to use.

Step 4: Paste Into New Email

Open up a new email in Gmail and click the canned response link.

If everything went as planned, the canned response should overwrite your entire email, including your signature line, leaving you with a completely clean template that you can add the relevant information into.

Some Caveats

Right now, much to my chagrin, Gmail Labs is not available for Google Apps accounts. It is only for basic Gmail accounts.

Second, be EXTREMELY careful when using this feature as it is very easy to accidentally hit “Save” and not “Open” when trying to drop in a canned response, thus overwriting your existing template. Both “Open” and “Save” use very similar pop up warnings, making it very easy to click past them without reading.

Finally, double check your subject and formatting after dropping in the canned response. Though sometimes it seems to add the correct subject, other times it does not. It is clear that this feature is not working 100% just yet.

Conclusions

All in all, I this new feature has a great deal of usability and, though I’ve focused here on sending a DMCA notice, it works just as well for any stock letter or template.

This is a feature that I’ve been waiting for for a very long time in Gmail and the fact that it is not available for Google Apps has me a bit miffed right now. However, I can use my regular Google account to send any notices that I have to.

Perhaps the greatest beauty of Gmail is its flexibility, allowing me to send mail from my address using several different Gmail accounts.

It was another wild week for copyright news with some strange twists and turns to the ongoing copyright dramas as well as a few great opinion pieces and a very sad tale taking place at the U.S. border.

All in all, there were seventeen stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• PRO-IP Gets Signed Into Law
• Mygazines Closes Down
• Google Loses Twice in Germany
• Lessig Releases a New Book
• iBeer Gets Drunk, Sues Coors
• 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

The quiz seemed to generate some interest, just not the kind I had expected. A few people wrote me to ask if one of the questions was possible and, if so, how to do it. Still the, first poster, Andy Murdoch of MMMeeja, a very neat looking Web design and development company, was the one to get the questions right.

So what were the correct answers and why? We’re going to take a look at the questions one at a time to see what the right answer was and

The Answers

What are three ways you can request your site be removed from Google search? (Note: This is your own site or a page on it, not an infringer)

Not surprisingly, there was more than three correct answers. The most common ways involve using robots.txt or meta tags. But you can also use Google Webmaster tools to remove the site or you can direct your server to respond to Google with an error code.

There are other ways, but those are the most common.

What is the email address for the Google DMCA agent? (please only include the part before the @).

The answer is DMCA-agent. This was actually something of a trick question. Google recently changed its DMCA information, the former address was amac. However, since I’ve mentioned the previous address on this site and it appears to still work, I would have accepted it as an answer.

What, according to Matt Cutts, is the most effective way to report spam to Google?

The answer was right here on Plagiarism Today. Matt Cutts has said that spam reports filed through Google Webmaster Tools are given much more weight than those files through other means.

What is the name of the Google service that will email you search results as they are picked up by Google?

Google Alerts. I’ve mentioned this service many times on this site and it remains one of their best anti-plagiarism/copyright infringement tools.

What is the name of the Google spider, or rather, the name you need to refer to it as when you are trying to block it?

Googlebot. This one was pretty simple actually and you can find it on any number of sites.

What is the meta tag command to prevent Google from displaying a sample of your content in their results pages?

This was the one that seemed to pique people’s interest. I got a couple of emails asking me if this was even possible. It’s actually pretty simple. The meta tag command “NOSNIPPET” will prevent Google from displaying the snippet in their results pages.

You can read about this and other neat Google Meta Tags here.

What search command lets you see approximately how many pages Google has indexed on a site?

site:yourdomain.com. Important to note that this method is rather dubious in its effectiveness. The results tend to differ wildly from search to search but can still give you a rough idea of the range of indexed pages.

Conclusions

All in all, most of the questions in this quiz were pretty basic. Outside of the Matt Cutts and the NOSNIPPET questions, most of the questions could be answered any number of places.

The goal was to get people thinking about how Google users their content and what tools they are provided with to control that.

I hope everyone enjoyed this quiz and look forward to another one in the near future!

Special Thanks: To Red Vs. Blue for the CTRL+ALT+BINGO Joke. Too good not to reuse…

One of the classic examples of the this cryptic writing is the term “repeat infringer”. Under the DMCA, hosts are required to “adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers”.

While this sounds straightforward, its application turns out to be anything but. Since the law doesn’t define the term repeat infringer, the discretion is left up to the host and, as a result of that, enforcement of this particular rule varies all over the map.

This might seem to be a minor issue. However, if you are someone being reported for copyright infringement, this is the difference between having an allegedly infringing work surgically removed and losing your entire account.

Likewise, if you’re reporting someone for infringement, this is the difference between someone staying in business, just without some of your content, and being forced to move.

Either way, it is important to know what the term means, so you can better protect yourself.

A Matter of Perspective

photo credit: believekevin

Consider the following scenario: While doing a check for your own content, you are confronted by a site that has taken twenty items of your work, either through automated or traditional means. You decide to report the site to the host but would prefer that the domain be shut down as you suspect they are simply going to take more in the future. How do you do it?

Which of the following do you do?

1. File One Notice: Send one DMCA notice with all twenty items listed and hope that the host understands the severity of the case and remove the site completely.
2. File Several Notices: Take the extra time to file many different notices and hope that the host sees the site as a repeat infringer and pulls the plug.

The right answer is that there is no right answer. Different hosts handle this in different ways. Since the law does not offer any meaningful guidance as to when a person is declared a repeat infringer, hosts have a lot of leeway to set their own policies. The problem is that this creates a lot of extra work for both copyright holders and hosts alike.

Coming To a Definition

The problem with the system is that there is no clear definition of a repeat infringer. One could base the term “repeat” on many different elements including the following:

1. The number of works infringed.
2. The number of DMCA notices received.
3. The number of people who complain.
4. The number of times they upload the same work (after takedown).
5. Any other standard the host wishes to use.

With so much leeway, the response of the host varies from banning everyone who has even one DMCA filed against them to never banning anyone. The response is often not even consistent within the same host as different abuse agents approach the cases differently.

Usually, when I bring up this issue with hosts, they say the same thing. The protect the client and don’t ban them so long as it is worth their while. They might be understanding of a few mistakes, but once a client becomes a drain on their resources, they are gone.

However, from the outside, it is impossible to tell when that is. Whether you’re the customer or the filer, it is impossible to know where you stand.

After all, if you list ten things in one DMCA notice, the host could decide that is one infringement, just ten items in one act. If you send ten separate notices, the host might not connect the cases and may take the time to remove every work individually.

The result is a lot of lost time and head-scratching, on the part of hosts, their users and third-party copyright holders.

Best Practices

Since this matter is not going to be straightened out any time soon, the most common question I get when faced with a repeat infringer is “Do I put each infringement in a separate notice of file them together?”

As I said before, there is no correct answer. Though you can definitely mention multiple works in the same notice, including several hundred if you see fit, there is no way to tell which approach is best.

Most larger copyright holders file a separate notice for each item. However, this is not a function of trying to thwart repeat infringers, it is the nature of the tools that they use.

The problem is that every major content tracking service doesn’t monitor sites, but infringements. This means that they typically do not have the ability to combine multiple works into a single notice without human intervention, which is precisely what they are trying to avoid.

For those of us who are using more human means to file a notice, we are still faced with a decision. In those cases, I usually tell people to “split the difference”.

What this means is simple, if you have a plagiarist that has taken 20 works, don’t burden yourself or the host with filing 20 different notices or one notice with 20 items. Instead, file one notice with five or ten infringements listed.

The idea is simple, let the host know that this is a serious case of infringement while compiling a notice that is both simple to create and easy to act on. Many hosts will ban the site then, especially if it is a suspected spam blog. If they don’t, file a second notice with another batch of works.

The goal is to not overburden yourself or the host, ensuring speedy removal of the content and maximizing the likelihood that the site will be banned. It seems to work fairly well and, generally, has been well-received by hosts.

In fact, using this system, I’ve only had to file follow-up notices a few times, meaning that most hosts seem to cut off a site after they’ve found five or more allegedly infringing items.

Still, it is far from perfect, it just seems to be the best balance I’ve been able to find over the years.

Conclusions

There is clearly a need for greater clarification on this aspect of the DMCA. We need solid understandings of what it means to be a repeat infringer as well as what constitutes a single act of infringement.

These are not simple questions but they are all things that the DMCA did not adequately answer, leaving service providers and their attorneys to write their own definitions.

If we are going to have any homogeneity in this area, the law is going to have to be clarified, Only with the law made clear can we begin to effectively debate tweaks and changes that might improve it.

In the end though, this is just another example of how poor writing has hurt the DMCA as much as poor policy. It was a law written in haste to resolve a rapidly emerging issue, problems such as this were inevitable.

Now it is everyone else who has to clean up the mess.

The SL universe is made up of nothing but intellectual property. Everything from the ground you walk on to the people you meet all fall, in one way or another, under the jurisdiction of copyright.

However, the digital nature of this world makes it incredibly easy to copy and rip off other people’s work. Even though there is a permissions system that is designed to prevent that from happening, the fact is that the system is hopelessly broken and even casual users are able to copy “protected” items almost at will.

To make matters even worse, Linden Lab, the creator and maintainer of the “grid” has proven to be almost completely ineffective at copyright enforcement. Though they accept and act on DMCA notices, they require them to be sent via fax and postal mail and only remove in-world items, not those in inventories or other copies of them.

This results in delays and limitations that destroy the process and create a complete inability to actually remove infringing works from the grid completely.

Yet, despite this, SL has a thriving economy with many people earning money and even a living from selling works on the service. This seems to run counter to much of the logic present on the Web.

So what can second life teach Webmasters about copyright infringement, I see a lot of potential lessons.

A Protection-Free Environment

photo credit: Ravenelle

For all practical purposes, SL residents are forced to assume that they have no protection of their works and that they can and will be copied regularly. Worse still, there seems to be very little in the way of means for getting them removed after the infringement took place, especially if they are held in inventories.

This has put Second Life creators in a strange position. How do you sell works at a retail price when illegal copies are available for either free or pennies on the dollar? With so little in the way of traditional enforcement to deter people from just copying and running, creators need to find other ways to reach customers.

However, for the most part, they have been successful. Though copying is still rampant and some designers left the service due to these issues, most have stuck around and continue to sell goods, with at least some success.

So how can Webmasters, bloggers and artists working on the Web take advantage of these lessons, I think there are five points to be gleaned.

Lessons Learned

When looking at the relationship between content theft and Second life, the following elements leap out.

1. DRM Fails: It is as simple as this, DRM does not work. Protecting your content with DRM will only frustrate legitimate users and will not prevent copying. Reliance on DRM is the path to madness.
2. Community Enforcement Works: The SL community has banded together and protested content theft as well as in reporting and ostracizing people who copy without permission. Since SL is a social site, this has proved as effective, if not more so, than DMCA enforcement.
3. Most People Are Good: Despite the abundance of free or low-cost illegal goods, most people who buy products in SL still try to buy from legitimate stores. The bigger problem comes when the copycats are able to fool others into thinking that they are the authentic source.
4. New Works Trump Old Copies: The longer a work has been on the shelf, the more illegal copies of it that will be distributed. Thus, the best designers are constantly turning out new items to ensure that people come to them, not the shady dealers.
5. Name Recognition is Everything: If people know who you are and trust you, they will come to you. Well-known designers in SL are among the most copied, but continue to receive business because people know to go to them first. In short, advertising and word of mouth mitigate against plagiarism.

While I am almost certain that designers would prefer that the DRM in SL was more effective or that, at the very least, Linden would be quicker and more thorough with its response, they have done reasonably well for themselves despite the rampant copying that exists on the service.

Not All Roses

This isn’t to say that things are great for SL designers. Times are actually very tough on the service right now and have been increasingly difficult for some time.

However, most of the problem stems from factors outside of the service itself including a slowing economy, a decline in the paid user base and new competitors to the service.

Clearly, making a living or even a second income in SL is not as easy as it was during the hype-filled months several years ago, before the desertion of many of the corporate partners, but it is still possible.

If Linden and the citizens of SL can recruit new users and grow the population, not just the hours spent, SL could still rebound and the artists currently established would have an upper hand in the revitalized economy.

Conclusions

Though SL is not perfectly analogous to the Web, there are many similarities and the fact many copyright holders there have been able to make a living despite rampant copying has a great deal to teach everyone.

Though the future of SL is uncertain, as a world based solely upon copyrighted material, it may have far greater impact as an experiment on the nature of how people treat non-material creations.

In short, if the creators of Second Life can survive and thrive, then there is definitely hope for rest of us on the Web. It just may require a change in the way we think.

Related Links

• Avenue Models: An interesting infringement case in the SL modeling community and a rather humorous way of getting caught.
• Fresh Baked Goods: A case where a DMCA notice was, according to the article, filed against an original creator instead of an infringer. Excellent look at the Linden DMCA process.
• Gwyn’s Home: A great discussion about switching to a service economy in SL.

Further Discussion

• What other lessons are there for Webmasters in SL?
• What more can SL users do to protect their work and grow their businesses?
• Is a virtual economy ever going to be free of this element?

It was a slam-packed show this week with stories from all over the world and updates to a lot of the ongoing copyright sagas.

All in all, there were eighteen stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• Fair Use Must Be Weighed When Filing a DMCA Notice
• The Pirate Bay Fights the Italian Blockade
• Comcast Gets Scolded for P2P Throttling
• Disney’s Copyright in Mickey May be in Trouble
• Pirate Video Game Toy Lands Seller in Jail
• 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

Though the ruling is, quite correctly, being heralded as a big step toward a more fair DMCA takedown system, to most who follow law in this area, it is neither a surprise nor a big change.

In fact, what is striking about this ruling to me is not that the law has shifted in any meaningful way, but that a court actually managed to interpret the law correctly and craft a ruling that was both logical and sane.

Given the current copyright climate, many of us find it more surprising when courts get it right than when they get it wrong.

Background

The case is often referred to as the “Dancing Baby Case”, the “Let’s Go Crazy Case” or some other variation of the theme because of the Youtube clip involved.

The video was taken by Stephanie Lenz, a mother who was filming her children playing in the kitchen when one of them started dancing to a song playing in the background. Wanting to share the clip with her friends, she posted a thirty-second clip onto YouTube.

However, it was the song in the background that started the controversy. Prince’s song “Let’s Go Crazy” was playing on the radio and could be faintly heard over the other noise in the room. When Universal Music, who owns the rights to the song, became aware of the video, they filed a DMCA takedown against it, securing its removal.

It was then that Lenz, with the help of the EFF, filed a counter-notice with Youtube to get the video restored and also filed a suit against Universal, citing both misrepresentation and interference with a contract.

Universal, however, quickly filed a motion to dismiss (PDF) the suit. In it, they claimed that, since fair use is an affirmative defense, meaning one that has to be claimed and proved by the defendant in a case, and is resolved on a case-by-case basis, that it would be burdensome for copyright holders to be forced to consider it before filing a notice.

However, earlier this week, the judge denied the motion to dismiss saying that “…in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements.”

With the motion to dismiss halted, the case now moves forward toward trial and should, at least theoretically, begin discovery soon. Depending on how eager the sides are to settle, this could speed the case toward a rapid conclusion.

The Legal Background

To those who have read the DMCA and have used the law successfully, the ruling was far from surprising. One of the requirements of a proper DMCA notice is

“A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”

In this case, the latter part is the most interesting, especially considering that fair use has been formally codified into law, in particular in 17 U.S.C. § 107. It only makes sense that, if a copyright holder, before filing a notice has to weigh whether or not the law allows the use, that they would also have to at least consider fair use.

The court seemed to agree with line of thinking and ruled accordingly.

However, this does not necessarily mean that filing a DMCA notice for an alleged infringement is automatically actionable should the use later be determined to be fair. The subject of the DMCA notice still has to show that the notice was in bad faith, something that would likely be very difficult to do in all but the most clear fair use cases.

This will likely be the challenge that Lenz and her attorneys face moving forward.

But despite these challenges, this ruling alone already makes this case a major victory for free speech as well as a victory for those who have used the DMCA responsibly and with respect for fair use rights.

What Changes

If you’ve been reading this site and following my suggestions on what to do when filing a DMCA notice, odds are you don’t have to change anything. Whenever I’ve mentioned filing a DMCA notice, I’ve been careful to instruct others not to stomp on fair use.

However, if you are still very concerned about this ruling and simply saying “Don’t file DMCA notices for uses that have a strong fair use argument” isn’t adequate, then here are a few suggestions.

1. Use Creative Commons Licensing: Though there are some uses of content that would technically violate a CC license but would be allowed under fair use, those are rare. Most people who act in good faith will at least make an effort to follow a CC license if one is available.
2. Focus on Worst Offenders: Always start from the top and work your way down. Begin with the offenders that use the most of your content in the worst ways (spammers, etc.) For most, there will be plenty of cases to deal with that raise no fair use issues without getting into more questionable ones.
3. Reach Out: If you find a use of your content that might be a fair use but does something that doesn’t sit well, such as omit attribution, reach out to the other person in a polite letter asking them to make the needed changes.

In short, what it all comes down to is being a good neighbor and doing the right thing.

Conclusions

Even if the ruling had said that copyright holders did not have to consider fair use, I seriously doubt I would have changed anything. Failure to consider fair use and free speech issues before filing a DMCA notice is not only dubious legally, but also in a business sense.

Simply put, individuals and companies that earn a reputation for using the law to quash free speech will build up resentment and hatred. Though no one is fond of spammers, plagiarists and other scoundrels of the Web, using the DMCA to shut down non-infringing speech is a sure-fire way to become one of the bad guys yourself.

This is one of those rare times that the law, the ruling and common sense all align with one another. In the end, the only thing I find amazing about this case is that Universal filed the notice in the first place and is now trying so desperately to defend it.

Hopefully the future rulings in this case will be as wise as this one.

Even though the actions of Universal may not have been the brightest, perhaps we can get some smart case law out it.

Related Links

Eric Goldman (An excellent view of the challenges ahead for Lenz)
IP Spotlight
Public Knoweldge (In-Depth Analysis)
Ars Technica (Great Overview)
Technical Policy Central
Wired News

Further Discussion

Will this ruling change how you send DMCA notices?
What do you think the end outcome of the case will be?
What punishment should copyright holders face for sending a DMCA notice on a use that is very likely fair?

Between large corporations filing DMCAs by the thousand, DMCA notices used to silence critics and other issues over the years, the safe harbor provisions have shown that, in the wrong hands, they can be a very dangerous tool.

Fortunately, most of the major cases where safe harbor was clearly being abused either have been or will likely be resolved by the courts in favor of those injured.

However, this has not stopped me from thinking of ways to improve and fix safe harbor, both to reduce the number of incidents where the system is abused and improve the overall efficiency of the process.

The Short List

Though, if I could get the ear of lawmakers, this list would actually be much longer, there are five improvements that I consider critical to making the safe harbor provisions work better and more fairly.

1. Transparency: I’ve spoken on this before but a gaping hole in the DMCA process is that there is almost no transparency to the process. The person who had the notice filed against them rarely sees the actual letter, there is no public examination of filings and accurate statistics are impossible to glean. Though sites such as Chilling Effects attempted to create databases for this purpose, hosts have not participated reliably and only a small percentage of notices are available for viewing. Greater transparency, both with the subject of the notice and the public, is needed both to discourage false notices and to better understand how the law is used.
2. Centralized Reporting: Currently, in most cases, the greatest challenge in filing a DMCA notice is not legal, but technical. Locating a host and finding their DMCA agent is complicated process that few are able to perform. The U.S. Copyright Office keeps a database of DMCA agents, but the information is both dated and difficult to access. A central means of reporting infringements to U.S. based hosts, if done with proper protections, would fix much of the problem. As it sits now, it is mostly large corporations, who can afford the research and legal expenses, that enjoy the benefits of the DMCA. Simplifying the process would allow more small copyright holders to protect their work.
3. Stronger Punishments for False Notices: Currently, the law states that anyone who misrepresents an infringement, either in a notice or counter-notice, is “liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation.” In most cases, this would be a very small amount and provide little motivation to sue. Though other laws may apply, the DMCA needs to bulk up the damages for filing a knowingly false notice or counter-notice.
4. Update For Modern Technology: The DMCA was written in 1998. Though it is a baby in terms of copyright laws it is already very far behind in terms of technology. Ten years ago, the term “online service provider” was much easier to define. Today, with sites such as Youtube and services such as Second Life, there is much less clarity and that has impacted the usability of the law as well. Hosts are now more than mere repositories for data and the law needs to reflect that.
5. Addition of Link Requests: The DMCA safe harbor system is a true one-trick pony, the removal of the allegedly infringing material. However, many copyright holders are happy to share their work, so long as they receive proper attribution. Give copyright holders the option of requesting a link request or other attribution instead of merely removing the work. Hosts win because they don’t have to disable user accounts, “infringers” win because their sites remain up and copyright holders win because they get links back to their original content.

Though most of these changes would be fairly simple to implement in terms of the law itself, they create technical and other challenges that will likely keep them from happening.

In the end, I am forced to admit that we are likely stuck with this outdated and easily-abused system that not only favors large copyright holders, but also ensures that the applicability of the law is almost always in doubt.

Conclusions

No matter what you may think of the safe harbor provisions, the truth is that, without the protections it provides hosts and other online service provides, much of the Internet we have today would not be possible. Without the legal security the law provides, many sites we enjoy would be too risky to be feasible.

Still, as laws go, it is a flawed one. However, it is not beyond all repair. Considering the other copyright legislation to have been cooked up by our Federal government, as well as other elements in the DMCA itself, the safe harbor provisions are easily some of the better rules.

Hopefully though, they can be improved and honed to eliminate many of the problems with the law and help copyright holders, hosts, search engines and users alike enjoy the rights and protections the law provides.

Images: Some of the images for this article were captured from YouTomb