[linux-elitists] Re: Google censorship of xenu.com domain [#201159]

Karsten M. Self kmself@ix.netcom.com
Tue Mar 26 03:44:39 PST 2002


on Mon, Mar 25, 2002, Rick Moen (rick@linuxmafia.com) wrote:
> Quoting Don Marti Uses GIFs on the Sly (dmarti@zgp.org):
> 
> > I will take another look at Google's DMCA policy when I get back to
> > town in early April.  What matters isn't how many pages of CoS
> > quoted material are reachable through Google, but how many pages of
> > content that is controversial to other powerful organizations might
> > be silently dropped from the index in future.
> 
> This is precisely the issue I tried repeatedly to bring to the
> Googler's attention:  If the tactic of invoking DMCA takedown
> provisions even for questionable copyright claims is seen to work a
> few times against them, then the floodgates will open, and any
> corporation or other moneyed interest gets an easy way to get critics
> removed from visibility.  Few of the latter will ever invoke the
> putback clause (most won't even know of it), and the few who do will
> have to endure the minimum statutory delay before they're visible
> again.

There's something that's bothered me about the DMCA take-down provisions
for a long time:  they are, IMO, an unlawful assumption of power by the
legislative branch, of powers reserved for the judiciary.  By taking
down material on presentation of notice, an ISP or other online party,
gets a a "get out of jail free" card.  This is a finding of innocence
without the benefit of a trial.

The other part that I'm just recongizing is that there is a large class
of harmed parties who have no recourse under 17 USC 512(f):

    (f) Misrepresentations. -
										
	Any person who knowingly materially misrepresents under
	this section -

	    (1) that material or activity is infringing, or

	    (2) that material or activity was removed or disabled by
	    mistake or misidentification,
    
	shall be 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, as the
	result of the service provider relying upon such
	misrepresentation in removing or disabling access to the
	material or activity claimed to be infringing, or in replacing
	the removed material or ceasing to disable access to it.

...OK, that's the alleged infringer, any copyright owner, owner's
licensee, or a service provider...

...but the _public_ isn't mentioned -- a public which has been denied
access to works taken down under a 512 provision.  Seems to me there's
an equal protection claim that might be made here as well.  The idea
that a number of classes could rise against organizations making
flagrant misuse of the 512 takedown provisions might be interesting.

Peace.

-- 
Karsten M. Self <kmself@ix.netcom.com>      http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?          
   Keep software free.         Oppose the CBDTPA.         Kill S.2048 dead. 
           http://www.eff.org/alerts/20020322_eff_cbdtpa_alert.html
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