Sunday, March 14, 2004 - The Progress & Freedom Foundation Blog

More on the NYT/National Debate copyright controversy

The fight is escalating, as the New York Daily News reports that ten more sites have picked up the original parody.

Also, the Times is accused of abusing the notice and takedown provisions of the DMCA by sending the ISP a shotgun complaint devoid of detail about the alleged copyright affronts. Why, one might even think the Times wants to rely on corporate muscle and superior resources to avoid any debate about free speech and the rights of parody.

Were I a content producer with a stake in maintaining the workability of the DMCA and its copyright protections, I would not like this trend of events. The content providers have a huge stake in ensuring that users of the DMCA turn square corners.

So let us call attention to subsection (f) of section 512 of the DMCA, which says:

"(f) Misrepresentations. -- Any person who knowingly materially misrepresents under this section --

"(1) that material or activity is infringing,
". . . .
"shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, . . . or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing . . . ."

Of course, that term "knowingly" is a barrier, given the uncertainties about parody as fair use. On the other hand, a shotgun complaint is quite vulnerable -- a judge might say it swept in material that the copyright holder should have known was not infringing, and this is sufficient to trigger subsection (f). So The National Debate could wind up with enough money to fund itself for a while.

In the meantime, the bloggers keep condemining the Times. See here, here, here, and here. The Electronic Frontier Foundation does not seem to have noticed, though, perhaps because it is too busy attacking the RIAA to worry about small fry like the NYT or the importance of political criticism.

posted by James DeLong @ 11:58 AM | General