Messages

271

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 12, 2012, 12:03:23 AM »

ok... as per Greg's request for citation, here's the lawsuit over a bogus DMCA takedown that I was referring to:

http://thepriorart.typepad.com/the_prior_art/files/Lenz.2.25.order.pdf

With some analysis:

http://blog.ericgoldman.org/archives/2010/02/standards_for_5.htm

"Judge Fogel has defined some standards for computing damages in a 17 USC 512(f) case, which creates a cause of action for sending certain types of bogus copyright takedown notices. I can't recall another case discussing the damages requirements of a 512(f) claim"...

In short, legal fees were awarded to the plaintiff because the DMCA notice was bogus.

---

I can see that this is relatively new legal ground, akin to how the legal status of online infringements remained until very recently.
I see the whole DMCA legal issue as being quite "loose" (for lack of a better term), because many of the concepts haven't been rigorously tested in the courts.
I have no doubt that things will "tighten up" up a lot after a few legal battles, especially in terms of what constitutes proof or due process.
All this is beginning to heat up...

S.G.

272

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 11, 2012, 11:40:57 PM »

I disagree with the contention that a "verifiable complaint" in the context that Moe stated should be form of "proof" (sufficient enough to take action).
Even though that's what actually happens... "an infringement might exist, so you're disabled until you prove otherwise."
The fact that a web page "exists" and a piece of content "exists", should not even be a test for a legitimate complaint.
That's like saying that because I have a car, that I must be guilty of speeding.

In the case of Diebold, I should mention that they paid a settlement. 
It was a "loss" for Diebold, but it didn't set a practical court precedent that could influence future court decisions in terms of what "damages" should be paid:

"in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), two students and their ISP sued voting machine manufacturer Diebold after it tried to use DMCA takedown notices to disable access to Internet postings of the company's leaked internal email archive. The court granted summary judgment to the students and ISP on their claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit."

http://www.citmedialaw.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content

I'm looking up that other case for Greg, which does provide guidance as to damages...

S.G.

273

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 11, 2012, 06:42:26 PM »

Good discussion.

If I recall correctly there's a DMCA lawsuit court precedent (if anyone's interested, I'll provide a link).
It's considered as a landmark case and it's kind of the de-facto standard of what to expect from such a case at this time.
The finding was that the plaintiff (a victim of a false DMCA takedown), was entitled to have their content re-instated, and they collected all attorney's fees.
No other damages were awarded.

I agree with BuddhaPi that lawsuits can be a big pain, risky, and something like this would be difficult to prove.
However, modern e-commerce systems collect and process a lot of data. A smart (and angry person) might be able to leverage this.
I think that a strong case might include traffic statistics from before and after a de-listing, tied into sales/profits.
In theory, it should be easy to show how many impressions and completed transactions arrived from google prior to a DMCA takedown, and a comparison could be made to the conditions after the DMCA takedown.
It's worth mentioning that many lawyers and judges might have a difficult time grasping such concepts.  So, it would be an uphill battle, as BuddhaPi rightly points out.

Filing a successful lawsuit on the basis of this may be out of the question for individuals or small businesses.
However, large companies can and do file all the time.  Imagine that an important corporate site was de-listed on the day of a major product launch?

All this will be interesting to watch, as people and organizations attempt to apply copyright as part of strategic business plans.

S.G.

274

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 11, 2012, 02:22:25 PM »

Great information, Moe.  Thanks.
I must admit that it does sound good on paper.

But, I think that ELI must have received a couple dozen of these, aimed at Scribd documents.
None of which were legitimate.  That must add up to at least two years of combined downtime on the content.  Pretty staggering. 

Hardly anyone is properly registering their content as it relates to use on the Internet.
So, I'm personally skeptical of the system as it now stands.

S.G.

275

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 11, 2012, 11:37:07 AM »

It's a good idea in principle.  However, it's bound to be abused.

Somebody could get your site de-listed, and it would take you at least two weeks, possibly a month or more to get it back up.
Just look at how DMCA's have been used suppress documents on ELI.  I'm sure that Matt wouldn't like ELI to be de-listed by a troll for even a short length of time.
Imagine if you're running an e-commerce operation?

"Copyright" is beginning to be used in ways contrary to how it's intended.
How long before the "Linda Ellis's" start sending phony DMCA's to google in order to harass the "Aprils"?

It would be much better if the search engines required some proof before taking action, or at least gave the accused 7 business days to respond.
It's a terrible idea if no proof is required before the damage is done, in my opinion.
Additionally, most never register their content even if it's theirs, and therefore have no real proof.

Here's the link from 2007, btw.  Some of the info is probably out of date, however.
http://www.plagiarismtoday.com/2007/09/20/the-dmca-on-7-search-engines/

Here's an even earlier one from 2005;
http://www.plagiarismtoday.com/2005/09/28/the-dmca-and-google/

S.G.

276

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 11, 2012, 01:02:27 AM »

Point well taken...
Thanks for the info.

It seems that this is nothing really new.  Although it's new to me (thanks Buddhapi).
I found an article on "Plagiarism Today" that mentions this from 2007.
I guess that this was a last resort tactic... is google publicising this as something new?

S.G.

277

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 10, 2012, 11:34:35 PM »

Since the DMCA doesn't apply to search engines, one could easily fight google on the basis that the DMCA law doesn't apply...
...unless somebody can show me the part of the DMCA that states such?

...or shall we just make up stuff as we go?

I think that it's important to understand the implications.
Imagine that a competitor of yours reports your e-commerce site to google on the basis of a phony infringement claim.
Google immediately removes the site from the listings, and you lose 100k a day.
You take google to court for damages, and they say that they employed the DMCA.
BUT, the DMCA applies to ISP's and NOT search engines.  See the problem?  Google might be held responsible.

S.G.

278

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 10, 2012, 11:26:13 PM »

I haven't had a chance to read it all as yet.

However, it would seem that they've modelled their guidelines on the DMCA.
But, this doesn't seem to fit into the actual DMCA law, as google cannot actually remove content from a site, or deactivate a site.
I don't recall DMCA laws mentioning anything about removal from search engine listings...
...and therein lies the problem with google's plan; they're attempting to employ a law in a manner for which it isn't intended.
This cannot be good.

This is google's "corporate policy".  It's not "law".  Since the "law" likely doesn't apply here, how will legal disputes be settled?
A judge will have to decide on a case-by-case basis.  What a mess.

S.G.

279

Getty Images Letter Forum / Re: Haters

« on: August 10, 2012, 08:46:06 PM »

Each image is different... and yes, each creator owns the copyright of each of their respective photos.
"Copyright at the instant of creation" is just worthless in terms of enforcement, however.

S.G.

280

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 10, 2012, 08:43:38 PM »

Google isn't an ISP, so I don't think that this would a "DMCA" issue.
Additionally, the DMCA is not a "criminal" statute.
Google isn't "forced" into this; it's just a bad idea.

Most people don't know a thing about copyright; it's baffling that so many people want to get on the bandwagon though.
There will be many lawsuits with actual damages because of this.

S.G.

281

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 10, 2012, 05:57:05 PM »

Great posting, and of great interest.

This sort of thing makes my blood boil.
Because, the number of infringement "claims" reported to google will skyrocket as "reporting your competitor" becomes a part of "black-hat" SEO.
Add to this that most people/companies don't have the foggiest clue as to what constitutes actual legal ownership, or what an actual infringement is.

S.G.

282

Getty Images Letter Forum / Re: Haters

« on: August 10, 2012, 02:52:50 PM »

Simply put, "copyright infringement" isn't "theft" under law.

It's also of note that photogs often make offhand statements about attorney's and thousands of dollars in damages.
However, there would be an onus on them to show that the image in question has actually sold for such prices.
That's very, very rare indeed.

But, all this is old hat, I guess.

S.G.

283

Getty Images Letter Forum / Re: Haters

« on: August 10, 2012, 12:08:36 PM »

Better technology has enabled many people (even children) to take great photos and produce impressive artworks.
That's a good thing.  But it also means that the prices for stock imagery have fallen drastically.
Infringers (alleged or otherwise) continue to be the brunt of anger from photographers that feel they're "owed" something.
Of course, we all know that it's not "theft".

Some have looked at photos that I take with my little camera that got with credit card points.
They say, "wow!  you should get into this!"... and I'm like, "are you kidding me?".
Everybody's doing it, and the market's saturated.

But, yeah... it would be great if people could make 10k every time they pressed the shutter button...

S.G.

284

Getty Images Letter Forum / Re: Lawsuit filed against Getty images for Copyright infringement.

« on: August 08, 2012, 11:47:48 AM »

Good posting.

Yes, it seems to be rather hypocritical.

I think that a valid argument can be made that "legal fault" can be separate from "damages".
Even if Getty wasn't at "fault" in this case, it would make sense that the plaintiff could claim damages against the profits that Getty made on his works.

It'll be interesting to watch this play out..!

S.G.

285

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: August 07, 2012, 10:01:48 AM »

Good links.
But, you should just let it go, bro.

S.G.