Second Life: DMCA Noise

This DMCA thing is a law I absolutely hate. It turns the American concept of innocent until proven guilty on its head. This has made it a prime candidate for abuse and caters to large corporate interests and extortion.

Rogue Cop! 2

Rogue Cop! 2 by Larry Vinaver, on Flickr

We have a number of people covering the DCMA Notice given to WordPress to take down photos in a users blog, You may be wondering why this is a big deal. I mean someone got a DMCA notice and took stuff down. So? 

See: Canary Beck and Hamlet Au.

The kicker is a HOSTING company (WordPress) got the notice and did the take down. This is kind of a big deal. In general hosting companies and ISP’s are immune to DMCA take down notices regarding customer content. So, it is possible to be accused and penalized without ever knowing it is coming.

We are also hearing that this is a CASE TO WATCH… I don’t think so. This isn’t going to court. So, no precedence is going to be set. Both sides have said they are going no farther with legal actions. In other words, they are only doing the free DIY stuff and not hiring attorneys. So… no court decision and no precedence. There will be nothing to see unless someone changes their mind.

Hamlet thinks it is a big deal a large company complied with a DMCA. Really!?! Like someone or some company has a choice?

Hamlet points to brand confusion. That is a real legal concern and a fuzzy area of Intellectual Property laws. But, this tends to be a trivial issue and this instance of purported abuse is an almost non-issue. In RL such cases are only brought in blatant cases of misrepresentation with substantial financial damage. Otherwise, it is simply too hard to prosecute. Plus brand confusion as seen in the image is very debatable.

Hamlet asks a reasonable question, can bloggers show competing products in the same photo? The answer is: yes. The UNLESS is when the blogger is promoting a product for personal (or their business) financial gain and deliberately creating brand confusion or misrepresentation and damaging another brand.

Hamlet’s last question assumes there is a precedent from this issue. There isn’t. It did not go to court, thus no precedent. But… it is an example of how DMCA can be used and/or abused. Can anyone file a DMCA against someone using their product in a picture they don’t like? The answer is and always has been: yes. Will it stand up in court? Not likely. But, it depends on a number of factors.

This case is more of an example of how the legal system can be abused than in how it actually operates or was intended to operate. It is also an example of how easily some companies can be scared.

A basic problem of American law is it allows people to use it to coerce people via threats of legal fees. America needs tort reform so that the losing party must pay the legal fees of the winner as is common in most of the world. Thus if you are unjustly accused and know you are in the right and can prove it, you can punish the fabricating accuser. Tort reform would stop much of the DMCA abuse. As it is in America, even if you win you lose.

Your take away here: this case is too small and far out in the weeds to worry about. It is a slow news week… month… may be year.

8 thoughts on “Second Life: DMCA Noise

  1. It seems like a lot of people reporting on this are focusing on the evil of DMCA and downplaying the fact that all that was asked was that proper credit be given to the creator. The blogger ignored the request. Had they complied, there would have been no DMCA takedown.

    It seems as though the request was ignored because it would have put the blogger in a conflicting position of giving credit to a competing business in the ad. To me, it certainly does not appear like the blogger is as innocent as they would like to come off as.

    • You are have a good point. Often DMCA is a later or last resort.

      But, the big issue is that it was WordPress that was handed the DMCA notice and responded.

  2. ‘the American concept of innocent until proven guilty’

    I’m afraid it’s not an ‘American concept’ it existed long before USA existed… In fact, it’s a fundamental principle that you will find in all democratic countries’ Law.

    But I agree with you that DMCA is totally wrong with regards to this principle.
    Sadly, USA is not the only democratic country in the world where that principle is scorched by a law, and the only examples I can find on top of my mind relate with laws that are (over-)protective to the money-makers (especially in relation with copyrights & Co)… A coincidence ?… Or am I badly mind-twisted against (greedy) money-makers ?…

    • The concept cannot be found in: the Magna Carta, English Bill of Rights of 1689, USA’s Declaration of Independence, Constitution of the United States, any of the works of the great English jurists, and the maxim cannot be found in any English court case or any jurisprudential treatise before ca. 1800.

      The French, based on Roman precedence, did include in the French Declaration of the Rights of Man and Citizen of 1789 the statement: “every man is presumed innocent until declared guilty.”

      The maxim formally entered American law: through a Supreme Court decision of 1894, Coffin vs. U.S.

      The concept received considerable discussion in 12th century Europe. Esoteric discussions of the concept evolve, or depending on your viewpoint – devolve, to discussion about ordo iudiciarius and trace back to Genesis 3 something when Adam proclaimed his innocence to God and God used a logical order of evidence to PROVE his guilt.

      The French debated and evolved the concept in the 13th century. a Frenchman, a canonist, Johannes Monachus (1250-1313) was the first European jurist to recognize the inexorable logic of God’s judgment of Adam: God could not condemn Adam without a trial because even God must presume that Adam was innocent until proven guilty.

      So, yes you are right it did not originate with Americans. And it is an American concept just as it is a French concept. You are inferring more in what I wrote than I intended. I will concede I could have been more precise. I do make some assumptions about what people know.

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