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[liberationtech] Designing Fairness for DMCA

John Adams jna at retina.net
Tue Jul 16 13:00:04 PDT 2013


We call this "The trust and safety departments at most major companies."

It already exists. You're getting wrapped up in a technical implementation
which would normally be handled by large teams. The level of integration
you describe is more than just a simplistic database table.

Additionally, your order of operations doesn't match the DMCA workflow that
is required by law. Have a look at this helpful infographic and rethink the
flow..

http://www.mediabistro.com/appnewser/files/2012/02/infographic-dmca-process1.png

-j



On Tue, Jul 16, 2013 at 12:47 PM, <riptidetempora at tormail.org> wrote:

> Hello, I'm @RiptideTempora on Twitter. My background is in web
> development. The other day I postulated a system for handling DMCA
> takedown notices on an individual website level that would tip the scales
> in favor of the users (whom are, as far as I can tell, currently shafted
> by the current iterations of U.S. legislation).
>
> The full text can be found here: http://pastebin.com/0uG85vna
>
> The process would go something like this:
>
>     1. Someone sends a DMCA Takedown Notice
>     2. A new database entry in `dmca_takedowns` is created with the entire
> email
>        (with full headers)
>     3. All infringing material are linked in the database to that takedown
> notice
>        which adds a message saying "A DMCA Takedown notice has been filed
> for this
>        [article/video/song/whatever]."
>     4. All "authors" of the content are notified of the DMCA request by
> internal
>        message and by email of the DMCA Takedown Notice, which will
> include the
>        phone numbers and email addresses for ACLU, NLG, et al. should they
> wish to
>        file a counter-notice (which will also be public if sent to us, by
> adding
>        an entry to `dmca_counternotice` which is linked to the notice ID)
>     5. A public index of pending (and resolved) DMCA Takedown Notices will
> be main-
>        tained which include the full emails and all affected content
>     6. The maximum amount of time legally permitted (designated $lead)
> will elapse
>        to allow the original authors ample time to organize a
> counter-notice
>     7. If no counter-notice is filed after $lead we will either amend or
> disable the
>        public availability of the content. The `dmca_takedown` entry will
> be marked
>        as "Taken Down"
>     8. If a counter-notice is filed, we will disable the content after
> $lead days
>        and mark the `dmca_takedown` entry as "Counter-notice filed" to
> comply with
>        [my understanding of the law], then wait 14 days for the filer to
> respond to
>        file a lawsuit (during which time we will be in contact with the
> authors who
>        filed counter-notice).
>     9. If after 14 days no lawsuit was filed, the takedown notice will be
> marked as
>        "14 days expired without lawsuit" and the content will remain
> visible (but
>        still be indexed on a separate page for "failed" DMCA Takedowns)
>     10. If we receive notification that a lawsuit has been filed, we
> disable access
>         to the material and mark it as "Lawsuit Pending"
>
>       In total, I anticipate 3 pages consisting of 2 lists, 2 list, and 1
> list
>       respectively:
>          1. The front page will list:
>             A. New DMCA Takedown Notices
>             B. Counter-notice Filed
>          2. There will be a "taken down" page for the sake of transparency
>             A. Successful takedowns
>             B. Content disabled, pending the outcome of a lawsuit
>          3. There will be a "failed" page that lists unsuccessful takedown
>             requests for the sake of transparency
>
> I'd like to know if such a system would be legally viable or if it would
> incur additional risks for a website that implemented such a system; and
> further, what adjustments could be made to make this design more robust
> under the current legal and political climates around copyright law?
>
> Thank you for your time,
> ~RT
>
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