If, however, they decide to not enforce even one notice, no matter how ridiculous that notice might be, they run the risk of being found liable not only for the material identified in that one notice, but for any and all materials for which they have never received any notice. So, under the DMCA "safe harbor" provision, service providers have a very strong incentive to comply with all DMCA notices regardless of merit. In fact, that incentive is strong enough that it is nearly indistinguishable from being mandatory.

I don't think that's precisely how this DMCA safe harbor provision works. This is actually the first time I've heard that interpretation suggested.

In reviewing 35 U.S.C. Sec. 512(c), it appears that the service provider's liability is limited for material under certain circumstances, including "upon notification of claimed infringement as described in paragraph (3), respond[ing] expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."

If a service provider received, and ignored, notification of alleged infringement of file 1, I don't believe that the service provider would lose the safe harbor protection for file 2.

If you are aware of any judicial opinions (or even arguments made in court) that suggest otherwise, I would appreciate a citation.

forgot to click preview first

>>>if users issue a counter notice, then the service provider can replace the allegedly infringing materials without incurring monetary liability. This is where the DMCA idea falls-apart. . . .

Instructions for filing a DMCA counter notification with YouTube are easy to find [google.com] and clear enough. You can even send it by e-mail.

The counter notification is sent to whomever submitted the original take down request. If they notify YouTube that they have filed for an injunction, then YouTube won't put back the materials. But if they don't file for an injunction, then YouTube may reinstate the materials.

Does YouTube typically decline to reinstate materials when no injunction has been filed? I don't know. Professor Wendy Seltzer has successfully gone up against the NFL [seltzer.org] with YouTube's counter-notification process. I'm pretty sure that the NFL has more monetary resources than she has.

If YouTube does decline to reinstate materials after receiving a counter-notification, they are acting more conservatively than the law requires them to act in order to avoid monetary liability. This wouldn't be a breakdown in the DMCA, but a problem with YouTube's own policies and procedures.

I doubt that most instances of materials being taken down permanently do not involve counter-notification. I suspect that the more typical case is that a person's posting to YouTube is removed because of a take down notice, but the poster never sends a counter-notification. I don't know why this would be the case. It might be that the posters are unaware of the counter-notification proceedings. Maybe they choose to minimize their risk of getting sued and thus deliberately abandon the effort. But, when there is a legitimate dispute regarding an alleged act of copyright infringement, someone has to champion the case that there is no infringement. If nobody (i.e., neither the service provider nor the poster) is willing to take responsibility for keeping the material posted, then there is nothing the law can do to prevent the material from being taken down.

>>>if users issue a counter notice, then the service provider can replace the allegedly infringing materials without incurring monetary liability. This is where the DMCA idea falls-apart. . . .

Instructions for filing a DMCA counter notification with YouTube are easy to find and clear enough. You can even send it by e-mail.

The counter notification is sent to whomever submitted the original take down request. If they notify YouTube that they have filed for an injunction, then YouTube won't put back the materials. But if they don't file for an injunction, then YouTube may reinstate the materials.

Does YouTube typically decline to reinstate materials when no injunction has been filed? I don't know. Professor Wendy Seltzer has successfully gone up against the NFL with YouTube's counter-notification process. I'm pretty sure that the NFL has more monetary resources than she has.

If YouTube does decline to reinstate materials after receiving a counter-notification, they are acting more conservatively than the law requires them to act in order to avoid monetary liability. This wouldn't be a breakdown in the DMCA, but a problem with YouTube's own policies and procedures.

I doubt that most instances of materials being taken down permanently do not involve counter-notification. I suspect that the more typical case is that a person's posting to YouTube is removed because of a take down notice, but the poster never sends a counter-notification. I don't know why this would be the case. It might be that the posters are unaware of the counter-notification proceedings. Maybe they choose to minimize their risk of getting sued and thus deliberately abandon the effort. But, when there is a legitimate dispute regarding an alleged act of copyright infringement, someone has to champion the case that there is no infringement. If nobody (i.e., neither the service provider nor the poster) is willing to take responsibility for keeping the material posted, then there is nothing the law can do to prevent the material from being taken down.

Shouldn't the number one "shame" spot go to the congress that passed the DMCA?

No. The DMCA does not mandate removal of allegedly infringing materials. Without the DMCA, copyright holders could still send "cease and desist" letters to service providers, or otherwise request that allegedly infringing materials be removed. Service providers would then have to decide whether to comply with the demand/request or risk being held liability for monetary damages, perhaps under a theory of secondary liability. Even worse, service providers might have faced monetary damages even if they were unaware of specific acts of copyright infringement.

The DMCA "notice and takedown" safe harbor provides a voluntary way for service providers to avoid monetary liability based on the potentially infringing activities of their users. Even better, if users issue a counter notice, then the service provider can replace the allegedly infringing materials without incurring monetary liability.

Service providers that use the DMCA notice and takedown safe harbor are thus able to provide public fora without being having an incentive to police user activity to minimize the risk of owing damages in their users engage in copyright infringement. This is good from a free speech perspective.

If a takedown notice is sent, service providers do not have to comply . They can keep the materials online, provided they are willing to risk being found liable. Thus, service providers who choose to use the DMCA to protect themselves from obvious instances of infringement can still choose to protect the availability of their users' submissions.

This is good for service providers and good for users. Why do you think Slashdot has designated an agent under the DMCA?

Given the benefits of this provision, Congress should not be ashamed. Only those copyright holders who send out abusive takedown notices and the like, and those service providers who indiscriminatly hang their users out to dry, should be ashamed.

I don't understand the statement that some "counterclaim" was dismissed. The defendant did not have any counterclaims. She did make a Rule 11 motion for sanctions against the RIAA's attorneys. That motion is still pending.

I think that the submitter was referring to the "counter-complaint" mentioned in the article. The article said that Magistrate Judge "Levy also ruled that the RIAA, which has sued 30,000 individuals, was not a vexatious litigant, shooting down Beckerman's counter-complaint." The article then quotes a portion of the opinion where Judge Levy says that he found "no evidence of undue vexatiousness or ill motive on" the part of the plaintiffs'. Judge Levy was discussing Ms. Lindor's request that the case be dismissed with prejudice. Thus, this request is probably the "counterclaim" mentioned in the story summary.

The summary's language is not legally precise language, but it is an understandable mistake.

And I see that you have avoided replying to my more general point, which is that your average filesharer does very little economic damage to the record labels, putting them in the very uncomfortable position of trying to fight an enormous fog of tiny droplets with a laser cannon.

I agree with you. That is a horrible situation to be in. Right now, file sharing is like a lottery where the prize is a lawsuit. Every time someone downloads a song from you it's like being given another ticket. If your luck has run out, the person downloading it is some kind of investigation service that will turn over your IP address and the download time over to the copyright owner. The risk of a lawsuit means that file sharing is not free. But it also is horrible for the public relations of an entire industry.

I have commented on statutory damages. I'm not strictly against them. If you adjust for the risk of getting caught, they start to look reasonable (e.g., if the risk of getting caught sharing one file is assumed to be 1 in 10,000, then the risk-adjusted expected damages for willfully sharing the file is only $0.075 to $15).

I think statutory damages could be reformed though. Perhaps by lowering the maximum damages for file-sharing where no money was exchanged, eliminating or reducing the minimum statutory damages, or excluding from evidence works that are not part of the suit (to avoid award inflation by the jury).

Since you seem rather reasonable, I have a question: you talk about both sides' rights. Are you in favor of legislation in the "three strikes" style which tries (in my eyes badly) to "balance" economic rights like copyright versus human rights like freedom of speech and the right to due process?

I try to be reasonable, but I'll settle for seeming to be reasonable. As for three strikes laws...I really haven't given them much thought. My limited (and probably flawed) understanding of them is that they involve blanket injunctions against using the internet after repeat copyright infringement convictions. This seems too much like an enroachment on free speech. Sure, with the present U.S. system, copyright infringers may end up owing thousands of dollars for file sharing, but at least they can still argue, in worldwide fora, that justice was miscarried.

Ah. So if a random person infringes copyright using my net connection, possibly even without my knowledge, it is reasonable for me to have to defend myself in court for several years? I like the added touch of your "just" --- "just took several years". Do you have any idea what that costs?

This wasn't exactly a random person. This was the defendant's daughter, who brought a computer into the defendant's home at the time of the alleged infringement. It sucks being stuck in a lawsuit because you don't remember that your daughter was using your internet connection. But unreasonable for the plaintiff to continue the lawsuit when crucial facts have not been discovered...I'm not so sure.

To be clear, by "just" I meant that the several year delay was due to the several years it took to identify the right defendant (it just took several years before...). I did not mean that the length of time was insignificant (it took just several years before...). Thank you for pointing out the potential for miscommunication.

Marie Lindor, Beckerman's client, ...was accused of making copyrighted music available on the Kazaa file sharing program. After five depositions and three years of legal maneuvering, the RIAA has dropped the case against the woman whom Beckerman said has "never turned on a computer.

Let me get this straight. Who's providing "false information," "misdirecting... relevant facts and events," and concealing "critical information and evidence regarding the infringement at issue" again?

According to the decision, "plaintiffs' counsel requested leave to file this motion, having learned less than one month earlier , at the deposition of Yanick Raymond-Wright, that defendant's daughter had brought a desktop computer into her mother's home and had connected it to the Internet in the summer of 2004" (emphasis added). The decision goes on to day that "[d]efendant does not suggest that plaintiffs could have discovered this information sooner, as neither defendant nor the other deponents in this case recalled Ms. Raymond-Wright's 2004 visit or the presence of her computer in her mother's home."

It sounds like they sued Ms. Lindor because of alleged infringement activities that were traced to her internet account. Then they kept the suit open while trying to find out who might have used her account. It looks like it just took several years before they could identify the right defendant. It also looks like the defendant's incomplete testimony is one of the reasons why the plaintiffs did not identify the right defendant earlier.

JFC. The arrogance and hypocrisy is mind-boggling.

The Magistrate Judge probably reviewed the evidence presented pretty closely and with an open mind. The opinion seems well-reasoned and balanced on its face. I personally would not second-guess the opinion without taking some time to review the evidence at least as closely.

The last line of the linked article reads, "Expect a ruling on the RIAA's motion for sanctions soon."

Judge Trager did act on the plaintiff and defendant motions quickly. In December he referred the motions to Magistrate Judge Levy. You don't think that saying "my decision is . . . probably whatever this guy decides" counts as a decision?

Oh, going and doing some independent research, huh? Well, umm... thanks ;)

Well, not that independent. The decision was the first link in the article. Instead of reading the article, I just read the decision. When I saw your post, I went back to it and searched for vexatious to see if you what you said was accurate.

It seems like a decent opinion. The decision to levy sanctions should not be taken lightly. Neither plaintiffs nor defendants should be discouraged from exercising their legal rights.

For those who dared not taint their eyes with a quote from TFA, I will further clarify: NewYorkCountryLawyer was not accused of being vexatious.

The decision said that, "[a]ccording to plaintiffs . . . counsel 'intentionally provided false information, attempted to misdirect Plaintiffs as to relevant facts and events, and concealed critical information and evidence regarding the infringement at issue,' unreasonably and vexatiously multiplying this litigation and severely prejudicing plaintiffs' ability to learn the critical facts." The complaint sought monetary sanctions under 28 U.S.C. Sec. 1927, which only allows for sanctions if the accused attorney "multiplies the proceedings in any case unreasonably and vexatiously ."

The Princess Bride. Many students will have seen the movie, but they have no idea that it is a book and that the book is completely hilarious (and you can fool them into thinking it's an abridgment).

Excellent choice! It's a good book for introducing students to postmodernism and makes for a nice study of humor in fantasy literature.

Ender's Game. This is one of the best sci-fi stories I've ever read. The ending really surprised me.

As fun as Ender's Game is...I disagree. It is certainly well-written and ingenuitive, but strikes me as mostly an action-oriented adventure with little to challenge the reader. Xenocide has more going for it in the way of moral dilemas, the demands for survival, the metaphysical, and the alien (obligatory xkcd ref). Alternatively, Shadow Puppets has much to say about how nations exercise power and how alliances form. Unfortunately, both works can be a bit confusing without having read their predecessors.

Starship Troopers. The book is much better than the movie and has lots of interesting political ramifications to discuss.

Haven't read it yet...but perhaps I should!

That is.. take an enjoyable experience (i.e. reading a good book) and turn it into a complete chore by over-analysing everything to the point that students shun reading forever.

This seems to be an overreaction to a request for ideas on what should be part of a sci-fi/fantasy literature course. Students who just want to read sci-fi/fantasy for fun probably do not have to take this course. They can take a regular English course and then read sci-fi/fantasy for fun on the side. But students who take this course should be challenged in some way.

Perhaps the course should expose them to sci-fi/fantasy literature not circulating among the students' circles of friends. Perhaps they should be able to identify motifs or narrative structures that help define the genres. Or perhaps they should be able to relate the materials to the real world in a way that they didn't think about before.

But students taking such a course shouldn't leave it without developing something more than the ability to say "I like fun stories." If that's it, then they haven't been challenged and might as well have had the class period off.

That said.. if this is your intention though.. 1984 is a must. You can (and people have) turn just about any paragraph in that book into a masters thesis.

Can't disagree with you there. Nineteen Eighty-Four wasn't on my original list, but it should have been. Too many people talk about 1984 without having read it and given it critical thought. It is highly-relevant today on several levels, but many misunderstand or oversimply its relevancy.

I'd add some H. G. Wells and John W. Campbell - classics before Asimov (although Campbell's personal views are somewhat controversial now). And of course Asimov was mentioned by some people above me already.

I agree completely about looking beyond Asimov and company. I can't vouch for the Campbell (never read anything of his before). But here is my list of top picks.

Mary Shelly's Frankenstein is an excellent bit of classical literature that deals with topics such as hubris, justice, and divinity. It is also an enjoyable, easy read.

The War of the Worlds is notable for being written in a timeless style. Its parallels to the imperialism of the British Empire is excellent fodder for in depth student research.

Good Omens nicely turns Christian Apocalypse doctrine on its head while providing insights into the battles between bureaucracies and nation-states. May be controversial because of its connection to religious doctrine, but one of the more entertaining pieces on this list.

Gulliver's Travels, which is excellent satire, even if some of its messages are a bit heavy-handed. A little harder to read than some of the others, but an excellent piece nonetheless. Plus, there are so many common memes that derive from these tales. The various parts are easily read separately. If you only assign part of it, I would keep A Voyage to Lilliput and A Voyage to Houyhnhnms.

The Lottery is a must-read. You should find out if many of your students have been exposed to this from other literature courses. If not, then go for it! It has so many lessons about peer-pressure, hypocrisy, institutional momentum, and more. Plus, it is the exemplar "twist ending."

Organisations like the RIAA have unfathomably stupid people like yourself to act as their cheerleaders . . . The RIAA and its' ideas do not need to be defended; they need to be unsparingly, uncompromisingly, and completely annihilated. You are on the wrong side of this argument.

Why is there such a pervasive belief (or use of rhetoric that claims) that people who hold different positions or have different beliefs are necessarily stupid or inferior? Can't intelligent, reasonable people reach different conclusions of the world, even given the same evidence?

Aristotle had beliefs about the world that we know were flawed. Newton's beliefs were incomplete (and he was a bad investor to boot). Yet, I would not dream of calling either men stupid.

After several hundreds of years have passed, perhaps the level of copyright will have looked like a failed legal experiment (along with The Ordeals). Or, maybe copyright holders will have more control over their works, making their current level of control appear as weak in comparison (like looking back today at how women could not really own property in the past).

Discussion and debate about rights and responsibilities is healthy and an important part of the development of law. But perhaps we should show some civility to each other by recognizing that great minds do not think alike. Intelligent, reasonable people can view the world in different ways.

I do not think it necessary to say preface everything with "someday I may be proven wrong . . . " I just suggest avoiding ad hominem attacks except in the most rare cases where no intelligent, reasonable person can hold certain, highly-harmful beliefs.