Forum Overview :: Site Comments :: Re: A little note about the DMCA that people should know.

[quote name="Commander Tansin A. Darcos"][quote name="Jack's Inflamed Colon's Law Firm"][quote name="Senor Barborito"] a simple DMCA notification to Caltrops' webhost would probably be sufficient to get ICJ's account, and Caltrops, yanked within 24 hours. This is because under the DMCA webhosts and ISPs suffer equal financial penalty to their customers should their customers be convicted of copyright violation - and most message boards (including Metafilter, for one) grant posters copyright of their posts. Standard operating procedure within every webhost and ISP in the USA is to immediately pull the offending account upon receipt of DMCA notice and ask questions later, for one simple reason - the $15 or $25 a month you pay them is not worth the potential $150,000 per violation penalty of the DMCA. [/quote] Everyone has already been mercilously making fun of the above threat already but I want to make sure people understand just how silly it is. I am not a lawyer. But I have a lot of experience in working with lawyers on ISP take downs. If the DMCA notice doesnt come from a law firm the ISP will simply laugh at it and move on. [/quote] And they are damn lucky no one ever challenged them. A DMCA notice need only be from a copyright owner, it is valid even if it comes from a non-lawyer, and by following the DMCA, the website is granted common-carrier class immunity from liability for the poster's infringement. AOL got a notice directly from Harlan Ellison over a DMCA notice he sent them because of a poster's alleged misuse of some of Ellison's fiction. AOL ended up having to pay a settlement to Ellison rather than risk what was probably near-certain liability for <i>not following the DMCA rules</i>. By following the rules, the ISP is granted immunity from liability for a user's infringement. Fail to follow the rules and you, as an ISP now also become subject to publisher liability as well as the original poster having liability (if any). This doesn't eliminate any defenses, but it does mean instead of automatic immunity the ISP now would have to hire a lawyer and spend money to defend the suit, and if the use is found to be infringing, they are then liable as well. And if they didn't follow the rules, and they do win that it wasn't infringing, they're not entitled to counter-sue for a frivolous case, the law presumes you're supposed to follow the DMCA rules first and if you don't, you waived them. [/quote]