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Old 05-04-2011, 05:26 PM   #1 (permalink)
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DMCA Abuse in SL

I have heard anecdotal stories of DMCAs being used in SL as a way to disrupt and stifle competition. I saw it first hand with a close friend who was accused of copying a shoe that I saw her make from scratch, including all the various iterations of it during development. A competitor filed a DMCA claim and her items were removed. They were ultimately put back, but the experience nearly drove her out of SL. Thankfully she went on to build a pretty successful business, but the experience was still pretty traumatic.

One of the things I have heard is that the DMCA is often used against Asian and European content creators who might not necessarily speak English fully, and are less likely to fight the DMCA. I don't know the details, but the source is well versed in DMCA issues.

Is this a problem in SL? How can you protect your own business, especially as we are moving to a more automated system and asking to have content removed from inventories?
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Old 05-04-2011, 06:06 PM   #2 (permalink)
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A friend of mine was hit with false DMCA. She had wanted a wall texture to take to InWorldz (something pretty basic like white panel walls). She had a set she liked and asked the creator for permission to use it in IW. The creator said no (as is her right).

So my friend powered up her software and made a nifty set from scratch. Totally different in details to the other creators set (different panel width, wood texture, grain, shadows, tone, railings, window heights etc...) but they were white! And then a whole bunch of different color sets. She liked it so well she put all the sets up for sale.

2 days later she was hit with a takedown for only the white set - and that item was removed from her magic box by LL. So she found a lawyer and did a counter DMCA. And after a few days LL told her she was allowed to put it back up for sale.

But here is the bit we don't understand: she never heard anything again - just "go ahead and relist" from LL. From what her lawyer said, after the counter DMCA, she should have been provided the contact information of the accuser - so they could go battle it out in the courts (like anyone wants to battle about pictures of white panel walls in court..) But she got nothing, and no clue as to if her accuser ever received my friends RL info.

So yeah - not very transparent, and is open to abuse. It cost her more than a few sleepless nights.
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Old 05-04-2011, 06:56 PM   #3 (permalink)
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Well in the real world it seems pretty common google once claimed that about 37% of all the DMCA take down notices it receives are malicious or false (linky: Google submission hammers section 92A| PC World Magazine New Zeland).

I don't see why the figures would vary a lot in SL. Specially so as in SL fighting it may cost you your privacy.

The whole DMCA thing is so flawed, it seems to assume that the accused is guilty and must fight to establish innocence, that's not a good thing for any legal process.
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Old 05-04-2011, 10:09 PM   #4 (permalink)
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Quote:
Originally Posted by Sea Warcliffe View Post
...

But here is the bit we don't understand: she never heard anything again - just "go ahead and relist" from LL. From what her lawyer said, after the counter DMCA, she should have been provided the contact information of the accuser - so they could go battle it out in the courts (like anyone wants to battle about pictures of white panel walls in court..) But she got nothing, and no clue as to if her accuser ever received my friends RL info...
The person that filed the DMCA probably got the rl identity of the counter filer. And this is exactly the reason many will not counter. They don't want some nutter arriving on their doorstep with an axe over non existent virtual world content.

Since a lawyer was involved then, if that identity was owed, then the lawyer would have made sure it happened. But since it is on the DMCA filer to file suit, and the content was restored, then the matter seems closed. If this result is unsatisfactory then that lawyer is at fault or did not explain things very well.
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Old 05-05-2011, 12:59 PM   #5 (permalink)
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Quote:
Originally Posted by Sea Warcliffe View Post
But here is the bit we don't understand: she never heard anything again - just "go ahead and relist" from LL. From what her lawyer said, after the counter DMCA, she should have been provided the contact information of the accuser - so they could go battle it out in the courts (like anyone wants to battle about pictures of white panel walls in court..) But she got nothing, and no clue as to if her accuser ever received my friends RL info.
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The person that filed the DMCA probably got the rl identity of the counter filer. And this is exactly the reason many will not counter. They don't want some nutter arriving on their doorstep with an axe over non existent virtual world content.
In most self-filings, that's not likely at all unless they also filed claim through a U.S. court. Of course, with a real nutter you never know how far they might take things.

Sea, your friend's lawyer doesn't seem to understand the DMCA filing process. See provision 512 (h) of Title 17, which covers how one may subpoena for such information. I AM NOT A LAWYER, but as far as I'm aware a counter-notice (which is what your friend's lawyer would have filed) is meant only to force an item or items to be returned. The only way her lawyer should have received real life info on the original filer is with a full counter-DMCA against the other person's texture (that is, your friend would have to declare they stole it from her), and then subpoenaed for that info through an actual lawsuit.
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Last edited by Free Xue; 05-05-2011 at 01:10 PM. Reason: double-checking my law stuff...
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Old 05-05-2011, 01:26 PM   #6 (permalink)
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The DMCA seems up there with this new deal where a corporation can chose not to allow a ...oh bother, can't remember the term, but a claim from m....class action suit. Yes, the people with all the lawyers are not protected from dealing with a case for 30 dollars [and now can get away with screwing us over more.

The DMCA seems like the same sort of law - it being initially to protect the RIAA and similar from having songs distributed. Except now it can be used to get most anything removed without warning, without proof, and against the whole underpinning of the original legal system - that all are innocent UNTIL prove guilty.
Sorry, I am really annoyed with how things are going, and I've seen people suffer from DMCAs on the net but not in SL, losing hosting multiple times.
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Old 05-05-2011, 01:44 PM   #7 (permalink)
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Quote:
Originally Posted by Free Xue View Post
In most self-filings, that's not likely at all unless they also filed claim through a U.S. court. Of course, with a real nutter you never know how far they might take things.

Sea, your friend's lawyer doesn't seem to understand the DMCA filing process. See provision 512 (h) of Title 17, which covers how one may subpoena for such information. I AM NOT A LAWYER, but as far as I'm aware a counter-notice (which is what your friend's lawyer would have filed) is meant only to force an item or items to be returned. The only way her lawyer should have received real life info on the original filer is with a full counter-DMCA against the other person's texture (that is, your friend would have to declare they stole it from her), and then subpoenaed for that info through an actual lawsuit.
in sl if someone counterfiles, LL sends a digital copy of their counterfile, which includes rl name address phone number etc.
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Old 05-05-2011, 03:10 PM   #8 (permalink)
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in sl if someone counterfiles, LL sends a digital copy of their counterfile, which includes rl name address phone number etc.
They do know they're not legally required to do that?
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Old 05-05-2011, 04:42 PM   #9 (permalink)
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They do know they're not legally required to do that?
Wonders if anyone will sue Linden Labs over their handling of Privacy Act information? It is against the law just to hand it out.
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Old 05-06-2011, 09:53 AM   #10 (permalink)
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I don't know - it seems if someone files a DMCA and then someone counters it, that people need to know where to send the lawyers.
Besides, don't they have to send the RL info of the counter claimant to the original claimant? Seems kind of one sided not to do the reverse.
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Old 05-06-2011, 09:56 AM   #11 (permalink)
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Here you go. Should answer some questions:

7 Common Questions About DMCA Counter-Notices

Specifically see items 3 and 4.
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Old 05-06-2011, 01:05 PM   #12 (permalink)
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Problem still remains though, the DMCA is a guilty until proven innocent law and is totally bogus and ripe for abuse - let me see if I can find the facebook case I just read about....

ETA : http://arstechnica.com/tech-policy/n...eds-to-fix.ars
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Old 05-06-2011, 01:20 PM   #13 (permalink)
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A DMCA takedown notice is a legal document. The person who files it swears under the penalty of perjury that they are the copyright owner (or their legal representative) and that all informations are accurate.

That is something that most people don't take lightly, I would think. Unless they hail from a country that is beyond U.S. jurisdiction and has not entered any copyright agreements with the USA. In that case, Linden Lab should ignore the DMCA notice imho. (I even wonder if people from these countries, as well as anonymous SL residents, should be allowed to do business in SL at all).
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Old 05-06-2011, 01:21 PM   #14 (permalink)
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Problem still remains though, the DMCA is a guilty until proven innocent law and is totally bogus and ripe for abuse - let me see if I can find the facebook case I just read about....

ETA : Facebook takedown followup: what happened, and what Facebook needs to fix
Yes it is a problem. Seems like one must carry a lawyer around at all times these days.
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Old 05-06-2011, 01:24 PM   #15 (permalink)
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But here is the bit we don't understand: she never heard anything again - just "go ahead and relist" from LL. From what her lawyer said, after the counter DMCA, she should have been provided the contact information of the accuser - so they could go battle it out in the courts (like anyone wants to battle about pictures of white panel walls in court..) But she got nothing, and no clue as to if her accuser ever received my friends RL info.
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Sea, your friend's lawyer doesn't seem to understand the DMCA filing process. See provision 512 (h) of Title 17, which covers how one may subpoena for such information. I AM NOT A LAWYER, but as far as I'm aware a counter-notice (which is what your friend's lawyer would have filed) is meant only to force an item or items to be returned. The only way her lawyer should have received real life info on the original filer is with a full counter-DMCA against the other person's texture (that is, your friend would have to declare they stole it from her), and then subpoenaed for that info through an actual lawsuit.


You file a DMCA, they counter-file. If you wish to file against that, it's another step at which point you both get each others' legal details and you have to escalate it to court.
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Old 05-06-2011, 01:58 PM   #16 (permalink)
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Huh - Ill be the first to admit that there are many things about this that I do not understand. So lets see if I understand this right:

Person A files a DMCA against person B. Person B files a counter to that DMCA via LL. LL passes person B's counter DMCA info (RL information included) to person A, and tells B that they can relist.

So person A (who may well have filed a spurious DMCA) gets person B's real life information. And person B gets nothing but the allowance to re list their stuff. And that's it unless person B decides to go after person A in an escalated legal manner via a counter-DMCA?

Are there penalties for filing false, frivolous or spurious DMCAs? What is to stop someone from DMCA'ing all of their competitors? If the people filed upon don't counter, they ca not re list, if they do counter the accuser gets their RL info. What is the downside to filing DMCA's that are countered?
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Old 05-06-2011, 02:09 PM   #17 (permalink)
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Huh - Ill be the first to admit that there are many things about this that I do not understand. So lets see if I understand this right:

Person A files a DMCA against person B. Person B files a counter to that DMCA via LL. LL passes person B's counter DMCA info (RL information included) to person A, and tells B that they can relist.

So person A (who may well have filed a spurious DMCA) gets person B's real life information. And person B gets nothing but the allowance to re list their stuff. And that's it unless person B decides to go after person A in an escalated legal manner via a counter-DMCA?

Are there penalties for filing false, frivolous or spurious DMCAs? What is to stop someone from DMCA'ing all of their competitors? If the people filed upon don't counter, they ca not re list, if they do counter the accuser gets their RL info. What is the downside to filing DMCA's that are countered?
DMCAs are legal submissions. The penalty is perjury. It does of course take a willingness to escalate it to that level, and it certainly is something where people with malicious intent have an advantage, but LL's hands are also tied. They have legal restrictions on how they have to handle this stuff and it means that they have to take stuff down when they receive notices and pass those notices on when they receive contention over those notices.

The DMCA wasn't crafted with any of this in mind.
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Old 05-06-2011, 02:13 PM   #18 (permalink)
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Basically the DMCA was intended to be a faster way for legitimate rights-holders to have pirated content taken offline without the hassle of filing a lawsuit and subpoenaing an ISP for real details in order to serve someone papers. It allows people who have a legitimate copyright claim to get stuff taken offline when it's being distributed improperly.

It has been abused horrendously, mostly because most ISPs and services are so frightened about being included in a copyright lawsuit that they remove content even in cases where the original filer doesn't have a claim and they don't need to take something offline.

If you receive a notice and counterfile, at that point it becomes a matter for a traditional lawsuit. The DMCA is only intended to be a means to get content offline before it gets to that point.
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Old 05-06-2011, 02:23 PM   #19 (permalink)
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