On Oct 24, 2009, at 2:28 PM, Joe Greco wrote:
Laws frequently have multiple options for compliance. Doesn't mean you don't have to follow the law.
A DMCA takedown notice isn't "law," Patrick, and does not have the "force of law" claimed above.
You say potato, I say whatever. "In the field of law, the word force has two main meanings: unlawful violence and lawful compulsion." They are lawfully compelling you to take down the content, or explain why you should not. This is no different from many "legal" notices. If you ignore the notice, you risk legal ramifications, including the loss of Safe Harbor defense. This pice of paper has the "force" of the US gov't behind it. What would you call "the force of law?" Feel free to believe otherwise. IANAL (or even an ISP :), so maybe I'm wrong. But I'm not going to think poorly of any provider who thinks otherwise.
This seems like a very obvious case of parody/fair use,
Possibly, but I do not blame a provider to not being willing to make that distinction.
Yes, but it's troubling that a nontrivial provider of transit would make such a mistake. This is like Cogent, who, at one point, received a DMCA (or possibly just abuse complaint) about content being posted through a server of a client's, and who proceeded to try to null-route that Usenet news server's address.
[snip - bunch of stuff about Cogent] It is almost certainly not "like" anything. I'm guessing that you have no clue what actually happened. People are making assumptions from third-party accounts using 5th hand info. Generalization is bad, generalization on such flimsy info is silly. Maybe they typo'ed a filter list. Maybe some newbie over-reacted. Maybe the customer did not pay their bill. WE HAVE NO IDEA WHY THIS HAPPENED.
To be clear: I agree that a provider might not want to make a distinction between a legitimate DMCA takedown and something that's not, but it is reasonable to limit oneself to the things required by the DMCA. Null-routing a virtual web server's IP and interfering with the operation of other services is probably overreaching, at least as a first step.
I have stated over & over that it is not right for HE to take down non- infringing sites - _if_ that is what happened. So why are we having this discussion?
Doesn't mean you should "wait for a court order" though.
That is, of course, completely correct.
Glad we agree. -- TTFN, patrick