North American Network Operators Group

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Re: DMCA Violation?

  • From: Valdis.Kletnieks
  • Date: Thu May 08 10:36:25 2003

On Thu, 08 May 2003 06:29:25 PDT, "Christopher J. Wolff" <chris@bblabs.com>  said:

> Has anyone seen a copy of the following email?  Furthermore, has it been
> determined which ISP services create a legal or equitable liability for
> the ISP?  God help us if providing transport to an FTP site counts as
> one of the offending services.  I guess it's time to turn on NBAR at the
> edge routers.

Congrats.  You're the recipient of a "512 takedown notice".  (There exist ISP's
that haven't gotten one before? I'm amazed..;)

(Note - IANAL, what follows is my understanding of what the law says.  If
you're worried, get competent legal advice as well).

We get about 250 of these a year.  The MPAA and RIAA notices read almost
identically.  17 USC 512 is pretty clear about the ISP 'safe harbor' and what
you have to do to keep it - basically, you as an ISP do *NOT* have to worry
about content that happens to be on or go through your servers as a result of
your user's actions *IF* you take action when you *do* receive an infringment
notice (one of the *good* things about the DMCA, incidentally - fielding 250
complaints a year is a lot easier than filtering an OC12 for content and
worrying if you miss something).

http://www4.law.cornell.edu/uscode/17/512.html is the full text - it's
actually fairly readable.

All you have to do is make the infringing material not accessible - and
17 USC 512 is *very* non-specific as to *how* you do it.  You can nuke the
file, you can change the permissions, you can make the user remove it - your
call.  You just have to make it inaccessible, and if you have a repeat
violator, you need to have a policy that allows you to terminate them.
They even don't specify a time frame other than "expeditiously", so as
long as you aren't dragging your feet, you're probably OK.

Our standard procedure for first-time offenders is to track down the user who
has/had the IP address in question, and e-mail them a notice that basically
says "Take it down by COB today, and notify us you've done so, or your access
will be terminated".

As far as "Big Brother" goes,  17 USC 512 is *NOT* the big problem in the DMCA
(in fact, I'd say that 17 USC 512 is reasonably good legislation - it gives
the ISP a safe harbor, gives the copyright owners a clear path of action,
and 17 USC 512 (f) and (g) talk about what happens if the MPAA/RIAA/whatever
make a mistake).

If  you want an example of *bad* legislation in the DMCA, go read 17 USC 1201
(b)(1)(A) - the infamous "circumvention clause".  The problem is that it
prohibits you from gaining access to information you could otherwise obtain
under "fair use" (you've paid for the DVD, but you're not allowed to descramble
it so you can actually *USE* it, for example).


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