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Old 29-05-12, 21:44   #1
The Enigma
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Default Should Websites Charge A Fee To Process Copyright Takedowns?

Should Websites Charge A Fee To Process Copyright Takedowns?
by enigmax

Every day copyright holders send out countless notices which order BitTorrent indexes, cyberlockers, forums, blogs and search engines to remove links to allegedly infringing content. The process is time consuming for everyone involved. So, since time is money, shouldn’t those being burdened by the actions of third parties be compensated for their work? One anti-piracy company says charging for takedowns amounts to extortion.

The publication last week of Google’s Transparency Report gave us a clearer idea of the pressures the search engine is under from copyright holders. The report revealed that in a single month Google was asked to take down an astonishing 1.2m links to allegedly infringing material.

As a US company Google must comply with the requests in order to maintain its DMCA Safe Harbor protection. The reports stops short of revealing the associated financial costs but considering the scale of the operation it’s safe to say that they’re significant. So who should pay?

This interesting issue has been raised not by Google, but anti-piracy company Takedown Piracy whose recent dispute with a torrent site spilled over into the public domain a few hours ago.

“Piracy site uses extortion with copyright holders” says the blog headline penned by Takedown Piracy owner Nate Glass.

“Recently, we sent a fully DMCA compliant notice to a large torrent site. While our notice was accurate and fully DMCA compliant, we did forget one thing. The lump of money the piracy site demanded,” Glass writes.

TorrentFreak recognized the torrent site in questions as H33T.com. It’s worth noting that H33T is outside US jurisdiction so is not required to comply with the terms of the DMCA. They will take down links but they have a set of terms and conditions.

The fee is $50 USD charged per takedown item in each request regardless of number of requests to cover reasonable administration expenses accounted to work we undertake on our network at your behest. If the list of items for takedown ever exceeds 500 total items in a single request then we will negotiate a bulk rate payment schedule

Glass is not amused by the business proposal.

“So not only does this site profit by selling ads using other people’s hard work, but in the event you want your property removed from their website, it’s going to cost you $50 for EACH instance of copyright infringement,” he continued.

Admittedly it is fairly out of the ordinary for a torrent site to attach a fee to a copyright takedown, but the admin of H33T told TorrentFreak that it’s simply a question of being practical.

“Nothing in this world is for free and where the network service provider, in this case h33t, is a third party to the rights holder’s complaint against the uploader, then it is only proper that costs are properly allocated to the party who is incurring the costs,” he explained.

Thanks to the DMCA, US service providers have had no choice but to carry these costs themselves, but what about sites not subject to US law?

H33T says it is “established practice” for rights holders and network service providers to negotiate the burden of costs. While there are indeed prominent examples of this around the world, what they all have in common is disputes over who will pay for what.

The fledgling “3 strikes”-style regime introduced in New Zealand recently was plagued with argument over money and in the end it was decided that the ISPs – the “network service providers” referenced by H33T – should be paid $25 NZD by rightsholders when they send a warning to a customer.

The UK’s now-delayed Digital Economy Act is also the center of a costs argument between ISPs and rightsholders, and negotiations in Australia aren’t going well either.

“The rightsholders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don’t want to pay to protect the rights of third parties,” iiNet chief regulatory officer Steve Dalby said recently.

And of course this is where it all gets quite interesting. Takedown Piracy are a piracy takedown service – they get paid by rightholders to have links to infringing content taken down. Takedown Piracy’s entire business model exists on the removal of links, a service that H33T is demanding a fee for – just like Takedown Piracy does.

“How hypocritical can Takedown Piracy be?” questions H33T.

“Their business model is to charge the rights holder a fee to make takedowns happen. But when the third party, in this case h33t, responsibly engages with them to expedite the takedown they refuse to apply the funds the rights holders have given them for the purpose. It’s outrageous and clearly a major wrong against their clients.”

Aldor Nini from anti-piracy company Acromax GmbH says that in some instances sites should be able to charge for takedowns, but with conditions.

“Sites may charge if their business is not based on copyright infringements and they are not already earning money from the illegitimate usage of infringing material,” Nini told TorrentFreak.

Interestingly, H33T informs us that the site responds to all takedown requests using the emails it is supplied with, but in the 6 months since the $50 takedown policy was put in place, only in two instances has he received a response.

But is $50 per takedown good value for money? It is if the one-download-equals-one-lost-sale mantra is applied, say H33T.

“What we see here is that the MAFIAA claim that a download equals a lost sale is absolute bull crap. If it were true, using MAFIAA math, $50 for a takedown is an extremely cheap and effective price to pay for 10s of thousands of lost sales.

“The MAFIAA narrative is deceit, lies and more lies.”

I think absolutely, that the copywrong groups should be charged. This isn't the first time that this has come up. Certain lawyers wanted results from discovery actions from teleco's and the teleco's had to explain to them that they just didn't have people without some other tasks they were responsible for to just release them to discover whom the lawyers wanted to identify, when it came down to thousands at a time. The lawyers even took this to court and lost. Not because discovery was a problem but because the lawyers wanted to put a time limit on responses, pushing extra costs in man-hours to provided the data but didn't want to pay at all for those extra costs.

If you get to watching it as I have for many years, you find the copywrong groups always want new laws but don't want to pay for them. DMCA is a prime example that is used in this article. In order to have the safe harbor defense, it is required that the links, posts, or topic of question be removed, with no defense allowed first. Only after it is taken down, if a mistake is made, can the real owner dispute it. Because of these actions, tons of abuse come with that. Even real-life fair use, isn't a defense. But it takes people to do the pull down and man hours to preform the action. It doesn't happen by software like the identifying of some topic by search.

In the filing, who ever files the DMCA take down must swear by oath in writing that to the best of their knowledge, it's an infringing material. That part of it has been ignored as being a requirement. In the recent release of takedown material Google released is a prime example of such abuse. Twentieth Century Fox through it's intermediary, Bay TSP, demands the takedown of the link to SFGate.com claiming that Chronicle is an abuse of it's copyright. For those not familiar with SFGate, it is better known by it's full name, San Fransisco Chronicle, the main newspaper of San Fransisco. The name Chronicle is not copyrightable, just like names in songs are not.

Bay TSP claims in the take down:
"The copyrighted work at issue is the film "Chronicle", which is owned by "Twentieth Century Fox Film Corporation"

and must sign a statement saying:

I have a good faith belief that use of the copyrighted materials described in all notifications submitted through the Program as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

The information in all notifications submitted through the program will be accurate, and I swear, under penalty of perjury, that with respect to those notifications, I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

So Bay TSP as just committed perjury with no action at all to call it to justice over committing a jailable offense. Nor is Bay TSP the only one by far. Many companies are using takedowns as a method to control bad publicity, claiming infringement with no ownership at all to the material in question.

The way to control all this abuse is to make it cost, not only in the terms of action, but in the terms of holding up the law that they themselves want to enforce.

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