2 years, 7 months ago
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When should someone ignore the law?
The Huffington Post has an interesting article that describes a disagreement between the popular blog Boing Boing and Ralph Lauren.
In short, the legal department at Ralph Lauren regularly issues "DCMA takedown letters" to website hosting companies that have customers who display Ralph Lauren photographs on their websites. Ralph Lauren isn't alone. I have personally received DCMA takedown letters from companies such as HBO, Time Warner, etc. It seems that any company large enough to have their own legal department thinks that blanketing the world with legal threats is good business.
It seems that Boing Boing has taken the stance that the image they used is "fair use" and has not complied with the form letter sent out by Ralph Lauren.
1)
What would you do if you were presented with a DCMA takedown letter? Would you quickly take down the image or video?
2)
These blanket letters dilute real, substantial claims. Do you think that the DCMA laws should be adjusted so that companies must conclusively verify that their private content is being illegally distributed before sending a letter like this?
In short, the legal department at Ralph Lauren regularly issues "DCMA takedown letters" to website hosting companies that have customers who display Ralph Lauren photographs on their websites. Ralph Lauren isn't alone. I have personally received DCMA takedown letters from companies such as HBO, Time Warner, etc. It seems that any company large enough to have their own legal department thinks that blanketing the world with legal threats is good business.
It seems that Boing Boing has taken the stance that the image they used is "fair use" and has not complied with the form letter sent out by Ralph Lauren.
1)
What would you do if you were presented with a DCMA takedown letter? Would you quickly take down the image or video?
2)
These blanket letters dilute real, substantial claims. Do you think that the DCMA laws should be adjusted so that companies must conclusively verify that their private content is being illegally distributed before sending a letter like this?
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M$4 Answers
I think they have the right to send whatever kind of letter they want, and I have the right to dispute it or even ignore it if I choose. I don't think that rewriting the laws to require them to go through some verification process is best. For one thing, who is going to verify that they went through the verification process, some law enforcement agency? And secondly, does the fact that they went through a verification process carry any weight in court as to the actual presence or absence of copyright infringement? I think they should be able to send letters and sue on whatever grounds they think prudent. If they lose, and the court determines there is no copyright infringement, they may be liable for court costs, and are perhaps opening themselves up for civil suits based on damages.
Personally, I would probably take down the pictures because I choose my battles carefully and don't think that's one I would choose to fight, but I would do so to avoid the time, trouble and cost of possibly going to court, not necessarily because I thought they were legally correct.
If I stood to lose a lot by taking the images down, and I felt confident about my legal standing, or if I had some backing and wanted to make a test case by challenging it in court, I'd let them sue me and get some case law established, either for or against.
Of course it wouldn't hurt to work for clarification of copyright laws.
Just my humble opinion.
Personally, I would probably take down the pictures because I choose my battles carefully and don't think that's one I would choose to fight, but I would do so to avoid the time, trouble and cost of possibly going to court, not necessarily because I thought they were legally correct.
If I stood to lose a lot by taking the images down, and I felt confident about my legal standing, or if I had some backing and wanted to make a test case by challenging it in court, I'd let them sue me and get some case law established, either for or against.
Of course it wouldn't hurt to work for clarification of copyright laws.
Just my humble opinion.
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M$Report Abuse
Ralph Lauren going after Boing Boing via the DCMA is sort of like a drunk trying to assault the the White House using a realistic looking toy gun. For those who don't know, Boing Boing is Cory Doctorow's blog, and amongst other things he is a Fellow of the Electronic Frontier Foundation. The EFF is sort of a digital civil liberties group that is extremely active in copyright and fair use issues. If Boing Boing is standing firm on their "fair use" of the image, it is likely that they have access to legal experts and know that they are in the right. If Ralph Lauren decides to follow their take-down notice with stronger action, they are probably in for a humiliating thrashing.
To answer your several questions:
1): If I was presented with a DCMA takedown, I would:
likely comply and remove the offending work unless it was was both extraordinarily important to me and I was absolutely sure that I was in the right. At this moment in time, I can't think of anything that I would want to post online that is important enough for me to get into a legal battle (with the possible exception of 1st Amendment issues). Risking my financial future over something on my blog just wouldn't be worth it to me under normal circumstances.
2): Do I think that the DCMA laws should be adjusted:
Yes, most definitely. I think the DCMA makes it too easy for content owners to engage in legal thuggery. Most people, even if they are in the right, aren't going to risk a costly battle over this issue. Even big players like Google/YouTube is pretty quick to comply with a take-down notice and often will pull things that are arguably "fair use". I would like to see a system in which copies of take down notices must be filed on an easily searchable public database. I also would like any recipient of the take down notice to have the right to add their response to this public database. This will allow people to see who is using the system to intimidate people into avoiding "fair use" and will allow for easy "class action" style counterattacks against the worst of the bullies. It would likely reduce such scare tactics and make people who issue take down notices be more careful before they start challenging people.
I also have an answer for your original question: "When should someone ignore the law?"
I believe that one should never ignore the law, even when willfully breaking it. Violating the law has potential consequences, and thus one should adjust their actions accordingly. If the law is unjust or if an emergency makes it necessary to violate the law, one should still be cognizant of the law so that they can minimize the possible negative consequences. For example, if you know that illegally using the carpool lane comes with a $200 fine, you can decide if it's worth the risk. Perhaps you won't consider taking the $200 risk to get home a few minutes early, but you'd gladly do it if it meant you get the chance to say goodbye to a dieing loved one before they slip away. If you get in the habit of ignoring laws rather than consciously deciding if and when to break them, you can easily find yourself in very hot water. I don't think the Boing Boing example is a case of ignoring the law, as I bet that they believe they are adhering to it.
http://www.flickr.com/photos/hughelectronic/2247778792/sizes/s/
To answer your several questions:
1): If I was presented with a DCMA takedown, I would:
likely comply and remove the offending work unless it was was both extraordinarily important to me and I was absolutely sure that I was in the right. At this moment in time, I can't think of anything that I would want to post online that is important enough for me to get into a legal battle (with the possible exception of 1st Amendment issues). Risking my financial future over something on my blog just wouldn't be worth it to me under normal circumstances.
2): Do I think that the DCMA laws should be adjusted:
Yes, most definitely. I think the DCMA makes it too easy for content owners to engage in legal thuggery. Most people, even if they are in the right, aren't going to risk a costly battle over this issue. Even big players like Google/YouTube is pretty quick to comply with a take-down notice and often will pull things that are arguably "fair use". I would like to see a system in which copies of take down notices must be filed on an easily searchable public database. I also would like any recipient of the take down notice to have the right to add their response to this public database. This will allow people to see who is using the system to intimidate people into avoiding "fair use" and will allow for easy "class action" style counterattacks against the worst of the bullies. It would likely reduce such scare tactics and make people who issue take down notices be more careful before they start challenging people.
I also have an answer for your original question: "When should someone ignore the law?"
I believe that one should never ignore the law, even when willfully breaking it. Violating the law has potential consequences, and thus one should adjust their actions accordingly. If the law is unjust or if an emergency makes it necessary to violate the law, one should still be cognizant of the law so that they can minimize the possible negative consequences. For example, if you know that illegally using the carpool lane comes with a $200 fine, you can decide if it's worth the risk. Perhaps you won't consider taking the $200 risk to get home a few minutes early, but you'd gladly do it if it meant you get the chance to say goodbye to a dieing loved one before they slip away. If you get in the habit of ignoring laws rather than consciously deciding if and when to break them, you can easily find yourself in very hot water. I don't think the Boing Boing example is a case of ignoring the law, as I bet that they believe they are adhering to it.
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M$
It's not ignoring the law to fail to take down the image - it's just gambling that they won't care enough to actually file a copyright infringement lawsuit, where you can pleas your case for "fair use".
I would probably take the images down- and I try not to use copyrighted images on my blog, so I hopefully won't find myself in this situation.
I favor strong copyright and intellectual property protection - my concern is that if the laws are loosened it is the "small time' artists, writers, and musicians who will lose out- not the companies with large legal departments.
I would probably take the images down- and I try not to use copyrighted images on my blog, so I hopefully won't find myself in this situation.
I favor strong copyright and intellectual property protection - my concern is that if the laws are loosened it is the "small time' artists, writers, and musicians who will lose out- not the companies with large legal departments.
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M$
It seems like you are not really asking about the general question "When should you ignore/break the law?" so much as the specfic question "Would I actually be breaking the law in this instance if I did X?"
On the face of it, it sounds like there would be a solid fair use defense in this instance. Which means that you are not breaking or ignoring the law at all, you are simply doing something which you believe to be legal, although some company would have you think otherwise.
Frankly I salute Boing Boing for standing its ground. A high-profile case like that should help to resolve any legal doubts about these issues. It will either become clear that it is fair use, and companies like Ralph Lauren won't be so eager with their notices in future, or it will become clear that the law as it stands sucks, and needs some reforming. I'm pretty sure it will be the first of those.
Would I personally do the same? Maybe, if I thought it was a fight I could win. Boing Boing presumably has enought visibility and resources to fight its corner effectively. Pragmatically I might cheer them and donate some bucks to their fight, rather than fight a similar battle myself with my rather smaller resources.
I don't know enough about how the DMCA works to know if what you suggest would be a good reform. But generally anything in which people are held guilty until proven innocent, and anything in which complaints are assumed to be valid just because they were filed is a bad system. It would probably be fair if companies took a sizeable financial hit anytime their complaints were not upheld, to deter frivolous and malicious complaints.
As for the general question about when to ignore laws, maybe there are no absolutes, but there are some good principles to take into account...
- When the law is unjust, and you are willing to break it openly and take the consequences as part of a campaign to change that injustice. That's been the case with all kinds of Civil Rights issues.
- When the law is on the books, maybe for historical reasons, but it is not applied and it is more or less universally accepted in the society that something is ok. For example there were countries where it was technically illegal to rip your own CDs to listen to on an iPod, but no one was ever prosecuted for that, and even the recording industry made no issue of it.
- Is it clearly the lesser of two evils? For example breaking the speed limit driving a dangerously sick person to hospital on a deserted road.
On the face of it, it sounds like there would be a solid fair use defense in this instance. Which means that you are not breaking or ignoring the law at all, you are simply doing something which you believe to be legal, although some company would have you think otherwise.
Frankly I salute Boing Boing for standing its ground. A high-profile case like that should help to resolve any legal doubts about these issues. It will either become clear that it is fair use, and companies like Ralph Lauren won't be so eager with their notices in future, or it will become clear that the law as it stands sucks, and needs some reforming. I'm pretty sure it will be the first of those.
Would I personally do the same? Maybe, if I thought it was a fight I could win. Boing Boing presumably has enought visibility and resources to fight its corner effectively. Pragmatically I might cheer them and donate some bucks to their fight, rather than fight a similar battle myself with my rather smaller resources.
I don't know enough about how the DMCA works to know if what you suggest would be a good reform. But generally anything in which people are held guilty until proven innocent, and anything in which complaints are assumed to be valid just because they were filed is a bad system. It would probably be fair if companies took a sizeable financial hit anytime their complaints were not upheld, to deter frivolous and malicious complaints.
As for the general question about when to ignore laws, maybe there are no absolutes, but there are some good principles to take into account...
- When the law is unjust, and you are willing to break it openly and take the consequences as part of a campaign to change that injustice. That's been the case with all kinds of Civil Rights issues.
- When the law is on the books, maybe for historical reasons, but it is not applied and it is more or less universally accepted in the society that something is ok. For example there were countries where it was technically illegal to rip your own CDs to listen to on an iPod, but no one was ever prosecuted for that, and even the recording industry made no issue of it.
- Is it clearly the lesser of two evils? For example breaking the speed limit driving a dangerously sick person to hospital on a deserted road.
You can leave an optional "tip" with Mahalo's virtual currency, Mahalo Dollars. If you are asking a difficult question that might require some research, or if you'd like a wide variety of feedback, a higher tip often leads to more answers to your question.
M$
