Annoying Questions I'd Like Answered...

[DSMatticus]

In order to benefit from safe harbor provisions (i.e. not be completely fucked because someone uploaded infringing material to your website), you must respond to notifications of claimed infringement (DMCA claims) in a timely manner. If you fail to do so, you don't get to claim safe harbor and you are liable for whatever it is your users upload. The only requirement before you can make a notification of claimed infringement and expect it to be honored is nothing at all. I'm completely serious. You don't have to prove anything to anyone. You aren't even liable for perjury if your claim turns out to be complete and total bullshit unless you specifically lie about your identity.

You can make a counternotification, but hilariously making a counternotification actually does subject you to liability for perjury and, here's the thing; in practice the service provider is under absolutely no obligation to restore the content when they receive a counternotification because their terms of service say "fuck you," so in order to avoid getting caught in the middle of a legal battle they will frequently just say "fuck you".

The DMCA operates on a guilty until proven innocent principle with the added kick in the nuts that pointing fingers at someone subjects you to less culpability than claiming your own innocence. Our IP law is modeled after the notion that the Salem Witch Trials were the epitome of justice. It's completely fucking insane. The law was written by massive corporate interests for massive corporate interests.

[Orion]

Is there precedent on what "timely" action means?

[hyzmarca]

That's not how precedent works. Big corps don't play by the same rules as small corps. The only precedent for slapping down one big corp is slapping down another big corp. Fights against small corps don't mean shit.

That's exactly how precedent works. Once a precedent has been established, everyone has to follow it. That's why its a precedent. It precedes.

If the Supreme Court says that John Wiley can't use copyright law to prevent the importation of legitimately published foreign-edition textbooks, that means that no one can prevent the importation of legitimately published foreign-edition anything. That doesn't mean that no one except Sony and Microsoft can.

I mean, there's a reason why Ebay and Costco supported that appeal. The precedent applies to everyone. Sony can't prevent you from importing foreign playstations games. The fact that they're a huge company doesn't enter into it.

[name_here]

The only requirement before you can make a notification of claimed infringement and expect it to be honored is nothing at all. I'm completely serious. You don't have to prove anything to anyone. You aren't even liable for perjury if your claim turns out to be complete and total bullshit unless you specifically lie about your identity.

(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.

This has been applied to fair use.

Is there precedent on what "timely" action means?

Not really (incidentally, the actual phrase is "acts expeditiously"). If it takes long enough it's clear that the recipient either got the notice and decided to stall or was not making a serious effort to pay attention to such notices, then they'd almost certainly be liable. I also would not bet on a system which has a week-long backlog counting.

[Kaelik]

I would just like to add to the conversation that while I pretty much agree with DSM on all the issues related to naming the movement and what it is about, I have a more nuanced view on copyright law and it is as follows:

If you are the kind of colossal idiot who thinks that court cases are the appropriate way to deal with false DMCA claims, I know a great firm that will absolutely bankrupt your ass with legal fees pursing this for you.

If somebody is going to get rich off your stupidity, it might as well be me.

[name_here]

Well, they are expensive, but if the copyright holder disputes the counterclaim (which they usually actually don't if they don't believe their case is solid because they pay legal fees too and don't like bad press) then it does go to court. Of course, if you aren't making money off uploading videos it's probably not worth it to you.

[Kaelik]

I also would not bet on a system which has a week-long backlog counting.

I would bet quite a bit that a week backlog would be acceptable. In the sense that if I owned youtube, and I had a week backlog because I paid people to individually review all takedowns, I would absolutely not even try to speed that system up.

[Pixels]

in practice the service provider is under absolutely no obligation to restore the content when they receive a counternotification because their terms of service say "fuck you,"

They lose safe harbor if they do not restore your content in 10-14 days, unless the folks who sent the takedown notice escalate to the courts. You could sue a service provider that does not put your content back up after a valid counter notice and they would not receive the protection that the DMCA offers. I cannot say I have heard of anybody actually doing so, but you can definitely shake a legal stick at them if they moan and whine.

Trying to target those who send frivolous takedown notices though... yeah, it is impossible. You have to prove they acted in bad faith as opposed to being mistaken or misled. Takedown notices and counter notices are comically imbalanced.

[name_here]

I also would not bet on a system which has a week-long backlog counting.

I would bet quite a bit that a week backlog would be acceptable. In the sense that if I owned youtube, and I had a week backlog because I paid people to individually review all takedowns, I would absolutely not even try to speed that system up.

Well, there isn't anything in the DMCA that requires the host to actually review the claims, and given how valuable, say, a movie's opening week can be, it's hard to argue that the delay isn't meaningful. Here's the take-down requirement:

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

<other requirements>

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

You'll note that it doesn't require the claim to be true, so a copyright holder could say that by individually reviewing them all and not either hiring more people or setting up an automated system that lets corporations authenticate their contact details to rapidly process their claims (you could probably hold out for requiring an automatch system to prove that their material at least appears in the video to get expedited processing) you aren't meeting your obligations and are intentionally allowing copyrighted material to persist on your system for financial gain.

Trying to target those who send frivolous takedown notices though... yeah, it is impossible. You have to prove they acted in bad faith as opposed to being mistaken or misled. Takedown notices and counter notices are comically imbalanced.

Um, the standards of proof are balanced. Being mistaken or mislead doesn't qualify as perjury. Hosts don't review notices on their merits but they don't review counter-notices on their merits either.

[Kaelik]

Well, there isn't anything in the DMCA that requires the host to actually review the claims

There isn't anything that requires it. Doesn't mean that courts are going to be mad at you for doing it, which is basically what you are claiming.

You'll note that it doesn't require the claim to be true, so a copyright holder could say that by individually reviewing them all and not either hiring more people or setting up an automated system that lets corporations authenticate their contact details to rapidly process their claims (you could probably hold out for requiring an automatch system to prove that their material at least appears in the video to get expedited processing) you aren't meeting your obligations and are intentionally allowing copyrighted material to persist on your system for financial gain.

You can claim anything, but don't be surprised when courts don't mean expeditiously to mean "without thought." As a general rule, courts give people a lot of fucking lee way to investigate whether they are following the law before making meaningful decisions. If they are seriously reviewing every case in a week, you can damn well bet that absent a smoking gun memo explaining that the purpose of the policy is to soak as much income out of fake material as possible, you aren't going to prove that a week delay to review all claims is not expeditious.

[Orion]

Let's swing around to a different part of this censorship discussion: Why the fuck do I care what Kmart decides to stock? Can anyone explain this to me?

[name_here]

Stores are free to stock and not stock what they choose. Customers are free to shop or not shop at stores in response to those decisions and complain about them. Obviously, stores generally decide what to put out based on how that affects overall sales through how much it sells for, how much bad PR stocking or not stocking it generates, and boycotts. Now, while online stuff is a big deal these days lots of stuff is still sold through physical stores, so people have a strong incentive to only make stuff that will get put in stock by major chains. So if you want something to continue being made, you want major chains to stock it. And if Grand Theft Auto gets pulled from shelves, that could happen to basically anything.

[Orion]

How many games does KMart normally stock? I wouldn't have thought they'd have an expansive collection; I was honestly surprised they were carrying it in the first place. I also assume that the 18+ aged gamers who are prepared to be carded and buy GTA would be willing to go to their local GameStop or whatever they have in Asutralia.

If actual game stores start to pull games because of public outcry, I'm going to get upset. Otherwise, I just sort of assume Target is going to have Settlers and Monopoly but not 7 Wonders and Agricola, D&D but not Vampire, Madden but not GTA.

[name_here]

Dunno about Kmart or Australian Target, but my local Target has like three/four aisles of games for various platforms. It's not a staggeringly vast collection, but they'll have the newest iterations of GTA, Battlefield, Modern Warfare, WoW, Pokemon, Smash Bros, and such. Plus a lot that are big enough you've likely heard them mentioned but aren't on GTA's scale; I grabbed Tales Of The Abyss off a Target rack.

I'm not in games publishing, but I expect that for the games which do get onto those shelves, they make up a fairly large percentage of their sales. Especially during the Christmas shopping season. Lots of people might buy whichever videogame interests them when they go for a beer run.

[DSMatticus]

The only requirement before you can make a notification of claimed infringement and expect it to be honored is nothing at all. I'm completely serious. You don't have to prove anything to anyone. You aren't even liable for perjury if your claim turns out to be complete and total bullshit unless you specifically lie about your identity.

(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.

This has been applied to fair use.

You're not actually contradicting anything I said. Perjury is a felony, and if there is reason to believe perjury has occurred the government gets to conduct a criminal trial. There is a reason we don't resolve burglary by letting the victim pile together enough money to hire a lawyer and file a civil suit whose costs may or may not be ultimately placed at the feet of the culprit. The government has the resources to collectively represent the people when the people individually do not have the resources to represent themselves. Which is why it is a fucking affront to common sense and decency that notifications don't have an attached perjury rider and counternotifications do; in practice, it means the people who are least equipped to protect their rights in a civil trial are the only party subject to criminal liability. It is absolutely essential that the government make a credible threat in law and deed to go after false DMCA claims, which this law specifically does not do; but it does make that threat against people who would claim fair use. It's bullshit.

Civil trials just are not the friends of people like you and I. You probably can't actually afford a good lawyer. I know I sure as fuck can't. Fuck, even the example you picked was a pro bono EFF case; that trial happened because charity.

[DSMatticus]

Now, while online stuff is a big deal these days lots of stuff is still sold through physical stores, so people have a strong incentive to only make stuff that will get put in stock by major chains. So if you want something to continue being made, you want major chains to stock it. And if Grand Theft Auto gets pulled from shelves, that could happen to basically anything.

This is the gist of it. Let's talk about the MPAA. Their ratings system is wholly private and voluntary, yet it's incredibly influential (read: burdensome) upon filmmakers. People can and do drop projects, rewrite their scripts, and edit their films to get less restrictive ratings because doing so means it will be easier to get their film into more markets and make more money. So it might pain you to learn that the MPAA are a bunch of homophobic shitstains who assign more severe ratings to depictions of homosexuality than equivalent depictions of heterosexuality. And they're respected; companies can and do keep products off their shelves because a bunch of fucking bigots gave them too high a rating, and everyone involved in the film industry can and does tailor their films to toe the lines set by those fucking bigots.

When a large retailer goes on a Jack Thompson-esque "violence in the media isn't okay and we aren't going to stock that" fundamentalist moral crusade, the correct answer really is to (metaphorically) burn their business to the ground. Because that shit is not okay and it never will be okay. But barring the ability to ruin them, you need to at least shout loud enough that they (and everyone else) have second thoughts about whether or not it's good business to impose their antiquated moral concerns on the industry as a whole, which is in fact what they're doing.

[Pixels]

Trying to target those who send frivolous takedown notices though... yeah, it is impossible. You have to prove they acted in bad faith as opposed to being mistaken or misled. Takedown notices and counter notices are comically imbalanced.

Um, the standards of proof are balanced. Being mistaken or mislead doesn't qualify as perjury. Hosts don't review notices on their merits but they don't review counter-notices on their merits either.

Indeed, being misled or mistaken is not perjury. The point is that I can be a rat bastard and issue all sorts of takedowns in bad faith and then later say I was mistaken. Unless I was a massive idiot and told somebody willing to testify against me that I was acting in bad faith, a conviction is very difficult to secure. How would you prove it? Bad faith, mistaken, misled - the results are the same, the only difference is in the mind of the culprit.

If I am issuing a takedown notice, at worst I pay my attorneys to fight a rightful fair use case that I lose. At best a court awards me a lot of money and I get a huge payday. Hurray me. Usually the small fry I hit won't want to risk bringing it to a very expensive court battle, so I take down their content even if it wasn't legitimately infringement.

If you have a takedown notice issued against you, you can take two paths. Either you don't contest it and your content is simply gone, or you choose to issue a counter notification. In that case, the best you can expect is that your counter notification goes uncontested, and your content loses 10 days minimum of exposure, press, and profit. At worst you lose a court battle and have to pay an enormous sum of money or declare bankruptcy. If it goes to court at all you are going to be paying a lot of money to defend it and in the meantime it remains down. If the content is your livelihood you are not only paying money to defend yourself but you are losing profits that you will never recover.

To summarize: takedowns are at worst a minor loss and at best a huge win, while counter notifications are at worst a huge loss, and at best a minor loss. There are massive incentives to over-zealously issue takedown notifications, and there are massive disincentives to pursue counter notifications. What part of that makes you think they are balanced?

[DSMatticus]

I want to point out that Google is on record stating that more than a third of the takedown notices it receives under the DMCA are not valid, and even a brief journey through Chilling Effect will tell you that the ratio of notifications to counter-notifications is far, far, far, far less than 3:1. Takedown notices are without a doubt being successfully used to censor legitimate content to a startling and horrifying degree. That's a thing that's really happening with such complete regularity that it is just an established part of the modern world.

[Orion]

Why the fuck, incidentally, didn't they go with "actually, it's about censorship."? That's like 1000% sexier than "actually, it's about ethics in gaming journalism."

[DSMatticus]

That's complicated enough that there's no single reason, but you wouldn't be far off to say that it's the same reason eventually talking about Zoe Quinn became informally off-limits in the threads (you just got spam-shouted with "GTFO it's not about her anymore"). You have to remember that the media narrative was that the movement was a misogynistic beatdown on poor, innocent Zoe Quinn (with mentions of the DMCA claim virtually nonexistent), and in an effort to disarm that narrative there really was a genuine, good-faith attempt to ignore her and go after the journalists instead. That decision was completely naive and misguided, but it's how enough people felt that that's the direction things ultimately went. The media hammered them to give ground on that specific front, they gave ground on that specific front, and the hammering never stopped. And people really should have known that it wouldn't have stopped and that censorship was their casus belli, but... people be fucking dumb.

[Ed]

This is some interesting revisionism. There was, full-stop, no serious good-faith attempt to "go after the journalists"--"censorship" and "ethics in game journalism" are both retrofits onto that tasty, tasty misogynistic core. The conversation started with Quinn and then stayed on Quinn (because gamers don't get laid, apparently) and Sarkeesian (because gamers can't read, apparently) and Wu (because...reasons, apparently). Nobody made that happen, the GamerGate assholes did that all by themselves. The core of the argument has always been Those Women Who We Don't Like--go look at how many times Quinn gets mentioned by the turds in the Reddit toilet bowl, then go look at how many times Nathan Grayson (who Quinn allegedly fucked for publicity for her free text adventure game, even though it doesn't, like, jibe with reality) is mentioned. If Quinn did DMCA that video--sure, that's shitty. I wouldn't put it past her*. It's also irrelevant, both to the issue at large and to the GamerGate cesspool.

The topic is Quinn, the GamerGaters wanted the topic to be Quinn because Quinn's ex tapped into that sad little zeitgeist among the basement-dwelling manchildren who call themselves incels and MRAs and all the rest. I am not unclear as to why you are trying to divorce yourself from it, but I am unclear as to why you think reality will cooperate.

As to why they dressed it up with "ethics in games journalism" rather than just "censorship", it's more of the same childish fuckery that makes them think that this tool can be taken seriously or is actually a faculty member at Harvard. Dude writes like I did when I was fourteen, before I got that you can't fake a point with a thesaurus. Given the choice between grandiloquence and not, any surprise they grabbed it with both hands?



* - I know Zoe Quinn a little. I don't like her, I don't like her games, I don't like her Patreon, I don't like her friends, and I wish she would go away.

[DSMatticus]

I have a favor to ask. Could you not jump into the tail end of a several page argument in its umpteenth incarnation and put us back on page one by declaring a bunch of things you "know" are true because... well, the people GamerGate is criticizing said so, and they wouldn't lie, would they? I have said a lot of shit here, and you are actually welcome to read it and respond instead of repeating a bunch of bullshit with the mindless zeal of The Faithful.

The beginning and end of the discussion about your credibility is that the people who told you "what GamerGate was really about" are the same people who have gone to great lengths to avoid giving the DMCA any attention, and are actually the same group of people who labelled TotalBiscuit a misogynist and threatened his career for attempting to talk about the DMCA claim. That fucking happened, and if you aren't actually willing to evaluate the integrity of those sources through the lens of those events you're fucking useless and gullible. The coverage of GamerGate is trivially provably dishonest. It's almost like there was some conflict of interest there, like how Fox News doesn't have a little asterisk next to their "fair and balanced" slogan telling you how many times they've been hit with defamation suits.

[Chamomile]

This is some interesting revisionism. There was, full-stop, no serious good-faith attempt to "go after the journalists"-

There was an Operation Disrespectful Nod. There was no Operation Make Zoe Cry. Your indignant tirade is blatantly, inarguably counterfactual by the time you reached your second sentence. Congrats on failing so hard and so fast.

[Longes]

People on reddit are justifying CIA's use of torture with the US's need to stop Russia. Why are people on reddit are so terrible?

[angelfromanotherpin]

People on reddit are justifying CIA's use of torture with the US's need to stop Russia. Why are people on reddit are so terrible?