The December 19th Drax Files Radio Hour podcast tackles something of a difficult (and emotive) subject: the Digital Millennium Copyright Act (DMCA), and its potential for good and bay in environments such as Second Life.
The DMCA, which is somewhat matched by the European Union’s Directive 2001/29/EC, is intended to protect the rights of copyright holders and to prevent copyright infringement, whilst simultaneously providing ISPs and other intermediaries with exemption from direct and indirect liability in situations where infringement is alleged to have taken place (what is referred to as their “safe harbour” status).
While it is a shame there was no qualified legal voice on the show, it does feature two extremely competent and level-headed commentators in the form of Tracy Redangel, co-owner of {NanTra} Poses, and Kitty O’toole of Kittywitch fame. Drax also chats with former IMVU content creator Fatima Mekkaoui (Imokon Neox in SL), and she also profiles excellent insight into matters and a balanced view of things.
The show was prompted by the recent Belleza DMCA situation, which although now resolved, has been the latest in an increasing new of cases where the DMCA process appears to be employed as a means of harassment or in anti-competitive behaviour.
This is because of the manner in which the DMCA operates. In essence: if party A believes (emphasis intentional) that party B is using material that infringes upon their copyright, they issue a DMCA notification to party B’s service provider.
The service provider must then act “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity”, and then notify party B that the content has been removed to comply with a DMCA notification.
Party B can challenge the claim by filing a counter-notification, which is passed to party A (at which point the original notification is passed to party B).
Party A then has 10-14 business days in which to indicate they have filed a claim with the court. If no indication is forthcoming, then the content must be restored by the service provider within 14 business days of the counter-notification being received.
The bias here is clear: a claimant only needs to indicate they are acting in a good faith belief that their copyright is being infringed to warrant content removal. No actual proof is required.
Thus, the door is open to potential misuse of the process. Google, for example, has indicated that around 37% of DMCA notifications it receives “are not valid copyright claims” (as opposed to incorrectly filed claims, which account for just under 10% of all notices filed in the USA). The Electronic Frontier Foundation’s Hall of Shame further demonstrates how the process is frequently used for questionable reasons by corporations and businesses.
In terms of misuse of the process, the Belleza situation is particularly interesting / worrying, as it appears to be rooted in harassment. Not only did the DMCA notification come at a time when the brand was facing significant issues in-world, up to and including the crashing of their store region, it now appears that the DMCA itself had been filed entirely fraudulently, using the details of someone not even involved in using Second Life. In other words, it was a deliberately fraudulent document aimed at disrupting Belleza’s business.
Inara Pey: Living in a Modemworld 