Testing Improvements to our Intellectual Property Complaint Process

There was a public fuss a while back when Blue Linden apparently did something with the asset database to trap a number of people running a clone of the Phenom combat hud. This didn't interfere with valid users of the hud. That was the story at the time.

I bought a copy after that time, and I know that at this stage the hud phones home (the creator's web server) when it is rezzed. That allows checking against an actual customer database.
Maybe this was what really caught the cloned copies, and the asset database story was just a story.

Reading this thread, you'd think the biggest problem is griefing via abuse of the DMCA process. It's easy to find other threads, here and elsewhere, that suggest the biggest problem is content theft. Which is it? I haven't seen any data about number of incidents, let alone relative RL costs to creators, innocent victims, or LL.

Clearly any process needs to balance the needs of the content creators against the potential for abuse. I don't know what that balance is, and I doubt LL even has a good way to quantify it. Chances are that the best they can do is propose a process or process improvement, collect comments, refine it, and deploy it - even though it won't be perfect, and probably will still need additional improvements within a short time frame.

They don't have a huge amount of choice in the matter. They can't afford to lose the DMCA safe harbor protections entirely, so they must have some process. They need to keep the cost of implementing the process to a minimum, and using electronic submissions is an obvious way to reduce costs. It's a plausible hypothesis that allowing electronic submissions from anyone will increase griefing, for the sole reason that an electronic submission is easier than a snail mail submission. (Note that there should be no other differences - no requirement that a written submission be notarized or sent certified, no requirements that it contain information not contained in the electronic submission.)

If the griefing feared in this thread turns into a significant problem, then they'll have to react to fix it, within the constraints of the DMCA. If there are reasonable improvements that they should deploy proactively, then they should. Verifying an email address or phone number isn't of much help. Verifying a snail mail address might be, but I don't see how they could justify the cost until they see how big the problem is.

I can think of one possible improvement to the process, which is to only accept electronic take-down notices from people who have first confirmed a RL snail mail address. From reading the DMCA take down process in the law, I can't tell if they're allowed to make that sort of discrimination, but it seems like a possibility. Or, if they're allowed to do this at all, perhaps they could continue to limit it to known content creators (say anyone who's had a store for at least six months, or with PIOF), since others would still be able to file via snail mail.

Improvements to the way they replace the allegedly infringing items make sense, but will only reduce the impact of griefing. I doubt any changes there will reduce the incidence of malicious DMCA filings.

The best fix, however, would be to get congress to amend the DMCA take down process to require that the contact information be furnished to the people whose content is being removed. Better yet, require that the contact information be verified first, at the expense of the copyright owners. It's not a huge deal to get a statement notarized, or to pay for return receipt mail, and a copyright owner would only have to do this once per online service.

Do you even know what the DMCA provisions are for takedown notices and what the liabilities of Linden Lab are to posters if they do not observe the protocols? It cannot be an automated process and there is nothing to indicate from Linden Lab or common sense that it will be an automated process. I have helped people filed takedown notices and it would be extremely difficult for an alt account to prevail on a false DMCA claim takedown notice. It's not as simple as someone saying my name is John Doe with an unverifiable address. Also they have to submit evidence of the infringing item and evidence of their original work. Most important of all, there is NOTHING eliminated from the DMCA requirements for takedown notices or Linden Lab's requirements for DMCA takedown notices from the currently existing hardcopy process in the online process. Your trying to make mountains out of molehills.

There is no suggestion that it is to be a totally automated process.
Quite obviously there is implied at the very least a confirmation by telephone and or email.

There is an easy online submission without the need for notary etc.
There is some manual process.
There is automation to replace the claimed infringing content with generic placeholders.

The question is - how much reasonability checking will LL do before acting on the claim?

I can see that for well-established content creators whose work is pirated on an ongoing basis will welcome a fast online submission. They would develop a track record of reasonable claims soon enough. The system would work very well for them.


The only real potential for griefing is in the smaller-scale end of things - creators whose output is small enough that a black-hat could manufacture the materials for a plausible claim.

The bit about test filing a claim against Starax was totally tongue in cheek.



We are talking about the LL who according to reports from child avatars, suspend an avatar if reported as being underage, and demand that they submit the exact same paper information that they submitted the last time they were suspended after being reported as being underage.
That would be an example of gross stupidity by LL in the face of the slightest whiff of exposure to a liability.


If your experience in guiding DMCA claims shows that LL actually investigate properly, then well and good - particularly if they do that for very low-profile IP owners.




ETA:
On the 'stupidity' thing - We recently had a thread here in which the OP had been unwittingly in possession of an infringing animation contained in an AO. They were sent a take-down notice by LL and invited to file a counter claim. Nobody posted to say that thsi was a reasonable action. Quite the reverse.

DMCA will probably work well for the people that it was designed for - the big fish. It's the minnows who are at risk from arbitrary action by LL over false claims.

That won't put a check on abuse. What are the damages to be eventually collected by having a few dollars' worth of content disabled for a few days?

If someone files a false DMCA claim against you in hopes of finding out your RL information, your realistic choices are (a) to eat the loss of a few dollars worth of lost inventory to keep your privacy, or (b) file the counter-claim to get back a few dollars worth of inventory at the cost of losing your privacy to someone who cares to know who you are and where you are.

By the way, if you file a counter-notification and the inventory is restored, you are not entitled to receive the identifying information on the person who filed the abusive claim in the first place. So forget about doing this in small claims court or representing yourself on your own, you will need to subpoena an unwilling Linden Lab, protecting the privacy of its user in accordance with law and its own liability concerns. You can theoretically do this without a lawyer, but the reality is that when you are unrepresented, most court clerk offices put up roadblocks to pro se claimants doing anything on their own, rejecting something like a subpoena request if one fails to dot an i and advising you to get an attorney to help you.

That's why it is important that if someone actually does use the DMCA process abusively, the perjury charges are actually pursued. That's the point of requiring a sworn statement, to make perjury be the penalty of abuse. If perjury isn't pursued (and I can easy see prosecutors looking at these things as not worth their time), the SL DMCA process is just screaming for abuse.

$150,000 plus attorneys fees. Those are the statutory damages that a court can award for willful infringement of a registered copyright and it only takes $35 to register one with the library of congress. There is also actual damages which could be lost business of the content creator while having the items restored. Then there are damages for defamation, intentional infliction of emotional distress and, if the jurisdiction recognizes it, invasion of privacy. Finally there are damages for misrepresentation of copyright infringement under the DMCA. In Online Policy Group, et al. v. Diebold Incorporated the court awarded $125,000 for misrepresentation of copyright infringement to the plaintiffs whose only apparent damages were lawyer fees and having access to their websites, which were informational websites not business ones, disabled by the site host provider. Those are the potential recoveries for a creator who has a false DMCA complaint filed against them.

For anyone else who just would have bought content removed, going to the trouble of filing a takedown notice and all the work it still requires just to get a few items deleted from someone's inventory is an extremely inefficient method of griefing and a lot of effort to risk having one's account deleted and IP address blocked by Linden Lab.

We don't know that Linden Lab would not disclose the identity of a complainant without a subpoena. Just because there is no legal requirement for it to do so does not mean it cannot or will not disclose the identity of the complainant and Linden Lab specifically states the following:
Regarding a criminal prosecution for perjury, you're assumption is correct that most prosecutors will not pursue a standalone perjury charge because perjury is a difficult case to prove beyond a reasonable doubt due to the potential good faith defenses that can be raised by a competent defense attorney. On the other hand, the possibility of spending 5 years in a federal penitentiary regardless of the likelihood is not something anyone should take lightly.

All in all I cannot see griefers, meaning people that just get their jollies harassing other people, abusing the notice procedure as a way of griefing. It just takes too much effort for too much risk. A more legitimate concern, which exists in the real world in general about the DMCA takedown notice procedure, is it being abused by competitors of a business but that is a potential problem with the existing process with Linden Lab as well.

There may have been much posting on the topic, but that should never be interpreted as an assertion that it is the biggest problem. What it indicates is a concern that smaller issues may not be getting any attention because people are focussed on the big shiny issue.
What it raises is a concern that LLs track record indicates that the implementation will not be thought through, and obvious avenues of abuse will not be clamped down, if at all, until long after they have become a very severe problem.




The process is fine and dandy large businesses defending their revenues. The legal repercussions can be severe for the losing party. DMCA – designed by big business for big business.



That’s one world and the process designed for it.

There’s a completely different world.

In this other world, the point is not to pirate content and distribute it for free or reward.
The entire point is to be as annoying as possible. That is the only reward. The more involved the stunt is, the better the lulz.
If the system can be turned against the innocent, that’s epic lulz.

Look at this from the point of view of a griefer personality.

If they submit a plausible false claim against a small-scale content provider, what’s going to happen?
Will LL staff take the time to investigate thoroughly?
Ha!
A classic griefer game is to provoke someone into taking some action. The griefer and friends then AR the victim. The victim gets slammed by the G-Team. All of the activity and chat logs are available to the G-Team. They (should) know that it’s common. They just look at the ARs and nuke the victim.

LL found it easier to repeatedly suspend avatars ARed for under age and oblige them to repeatedly submit the same proof of age. The alternative would be the theoretical risk of being seen to exercise a judgement call and being found wrong.

It will be easier for LL to use the automated system to replace the content with generic and simply wait for the person complained of to submit an appeal.
If there is no counter claim – case closed.
If there is a counter claim, then restore the content and leave it to the complainant to initiate court action. LL hands are clean – case closed at least for now.
If there is notification of court action, LL can pull the content again. LL hands are clean – case closed at least for now

The griefer won’t initiate court action of course.
The creator would have to submit a counter claim. There isn’t a plan for an easy online form to do that as I understand.
The creator could just suck it up and replace the items. This might be easier that incurring time and the cost of a notarised counterclaim.
That would be dangerous. On the face of it, they would then have a track record of being an IP thief. They were reported, had their content pulled and did not counterclaim = ‘proof of guilt’ on the record. Future complaints against them would very likely get fast-tracked through any checks. They would end up having their account suspended/deleted.
For the griefer, an undefended claim is brilliant. They develop a track record of making valid claims.





You are fixating on what the DMCA process was designed for.
It’s a wonderful griefing method.
Instead of a quickie staged event that lasts minutes, the content gets taken down for days. In addition, the victim is forced to go through a counter claim process – if they have any sense.
If the griefer sees that the content remains disabled, it means that the victim has not counter filed.
Hit them again for some other content. It will be easier on the repeats. Get them suspended.
The possibility of obtaining RL information would only be a bonus, and not generally the objective.

It’s brilliant! It’s using the system – just like the group ARing of an innocent, only better.



These considerations are unlikely to be to the forefront in a beta tested by a handful of major content creators selected because they have had issues with content theft. They will love the easy online filling. They will love the automated pulling of content.


LL *could* head off abuse by doing things like
- Not accepting online claims from anyone who had not already gone through a reliable notarised confirmation of identity
- Subject claims by anyone without a working payment method to a rigorous check as well as an identity confirmation
- Have an internal escalation procedure that might encourage an LL frontline operative not to take the easiest option (zap) even if there is doubt.


Two things are absolutely predictable.
1. If LL make it easy to abuse, it will be abused.
2. When it is abused, LL will do little or nothing even if the abuse becomes common


Kidd Krasner is correct. The biggest issue is the content theft.
The concern is that LL’s track record indicates that issues that are smaller in the overall but are devastating to individuals will be completely overlooked.

Griefers manufacture new anonymous accounts by the truckload.
They routinely use open proxies to hide their real IP-du-jour.
There is no penalty in having an account deleted by LL.

Create an account.A
Have it create some content
Have it put that content out in freebie/low cost places

Create some more accounts.
Have a new account.B 'pirate' some of account.A's content and distribute it.
Have account.A file a claim against account.B
B does not counter claim.

Repeat with 'pirate' account.C,D,E...... with account.A creating a record of fighting off infringements
Each new claim mentions the history.

It's no great effort to do so.


Have account.A use cloned content in a claim against a genuine creator. Call attention to the history of successful claims by account.A

It's not clear that the statutory damages for infringing on a copyright would apply to filing a false DMCA take down notice, since doing so is an act of perjury, not copyright infringement.

I don't know what sort of damages could be awarded, over and above actual costs.

It's perfectly clear that statutory damages for copyright infringement would apply in a false DMCA notice against a creator for the creator's own works. In order to file the complainant has to supply a copy of the work and assert that it is their own original work to Linden Lab which fulfills all the elements of copyright infringement per se.Please explain how the personal websites of 2 college students constitutes "big business" because that is who the lead plaintiffs were for Online Policy Group, et al. v. Diebold Incorporated.Please show me where Linden Lab has stated anywhere that the review process for DMCA notices is automated in any way shape or form. Until you do it is mere fiction and wild unsupported speculation on your part and your conclusions based on the same lack merit.Wrong. I am focusing on what the process involves, its possible consequences for those that file a false notice, and the level of inconvenience for the aggrieved. It involves much more time and effort to file a DMCA takedown notice than particle spamming, gesture spamming, texture spamming, orbiting, caging, sim crashing or any of the more traditional methods of griefing on the grid. It does not yield the immediately satisfying ability to witness the results that produce a sense of emotional satisfaction for the griefing sociopath. It also may not involve any actual significant inconvenience to the aggrieved (Oh noes! I lost 3 freebies and have to forgo a McDonald's happy meal to replace the items I lost! )

In addition, if it is bought content from an established merchant, the DMCA notice is not just against the purchaser's account, it is, by its nature, a notice against all such content and thus against the merchant. If the merchant comes into the process it is far more likely that a counter notice will be filed which leads us to the substantial difference in the potential consequences to the griefer.

If a griefer goes on an alt account and griefs until caught by enough abuse report investigations, depending on the nature of the infraction. The griefer will get an account suspension. Only when the number of events aggregates or when one event is a doozy like crashing several regions, will Linden Lab takes steps to institute an IP ban. If a griefer uses the DMCA notice he is exposing his identity not only to Linden Lab, but potentially to the world. Griefers generally love their anonymity so that possibility alone is a significant deterrent to use the notice process as a griefing tool.

In addition to that they subject themselves to complete banishment from the grid and deletion of all of their accounts including any primary account that may have significant content, land holdings and/or money. Add to that the potential civil lawsuit from the aggrieved which may include SL merchants that sold the goods to the primary target of the griefer, and however unlikely, up to 5 years in a federal penitentiary and you have a huge difference in the convenience, satisfaction and consequences of griefing using the DMCA notice process.

Sorry but there is no "fixation" on the purpose for which the DMCA process was designed in any of that.

What you are responding to there was my assertion that the DMCA was created for and by big business. Read up on the history of DMCA. Who proposed and got it passed? Who opposed it and why?

The case you mention was not a case of some minnows filing a DMCA take-down notification in order to protect their IP. The reason those students could take on the case was because they had backing to take on a very political case. Their case was that Diebold had abused the DMCA in using a take-down in order to suppress damaging information about their voting machines.
http://www.internetlibrary.com/cases/lib_case364.cfm
That was simply a case where “the dog got bit”.
Diebold with a lot of money abused the DMCA and got spanked. They got spanked because they had a lot of money.



Please show me where anybody has stated anywhere in this thread that the *review process* for DMCA notices is automated in any way shape or form. Until you do it is mere fiction and wild unsupported speculation on your part and your conclusions based on the same lack merit.

What people and LL have said is that parts of the entire process are to be automated. (1) The submission form and (2) the replacement of identified assets with generic elements.



You don’t appear to appreciate the level of anonymity that exists on the Net.
You don’t appreciate that the mentality of a griefer is to use whatever is available to annoy others. Your seem to have a shallow Fox News grasp of it. It’s a game. If the online submission is open to all then it’s a new vector with high lulz value and it will be used. Protection of the innocent would be completely dependant on LL limiting access to it and/or doing a thorough job on each submission. LL suck big-time on that kind of thing.


The aggrieved will be the small-time creator whose creations get taken down until they go to the trouble of filing a counter. That is a very personal type of violation. People who are in legitimate possession of that creators works will be inconvenienced until the creator files a counter, but they are only minor secondary targets.
Your attempt to dismiss the anger levels of their customers falls very wide of the target. These forums have seen people incandescent with rage over the loss of much less than the RL cost of a Mac. If inventory items go generic-useless and display a take-down the drama generated would be awesome.



You still don’t appreciate that a griefer does not have to expose their true identity to submit a filing. They only have to appear to do so. They only have to be in a position to respond to a telephone call using a throwaway anonymous SIM card and/or email. That can be done using anonymous resources.
Someone can even send and receive a fax without compromising their anonymity.
They are not interested in anything beyond the stage of getting the initial take-down.

You sound like you could be the type of person that thinks Age Verification verifies age.
You sound like you could be the type of person that thinks that something that looks exactly like a notarised document actually is a notarised document.

You definitely appear to be under the impression that a person who has not attacked someone with great clout would be pursued through a series of multinational legal systems with no guarantee of actually finding them or they having anything to make the expense worthwhile if found.

And your response was to my answer as to what kind of damages a plaintiff can seek when Amity thought it could only be nominal. Civil actions are not limited to big business. Whether a person can pursue one is fact specific as Diebold illustrates. It depends on the location of the potential defendant, the interested parties, the resources of the claimant, the potential damages, and the the potential to collect on damages, but none of that means that as a rule filing a civil action for misrepresentation of copyright infringement is only possible by big business. Further the history of the backing of big business for the DMCA takedown notice is somewhat off point to the ability to file an action for misrepresentation of copyright infringement since big business, perhaps ironically, theoretically sits in the defendants seat in such a scenario as it did in Diebold.You have said is that it would be easier for Linden Lab to replace content using the automated system and wait for the person to file a counter notice. I inferred that you believe that Linden Lab will honor a takedown notice so long as it fulfills the requirements in form not substance and would rather just remove the content than examine the actual merit of the takedown notice. That makes it sound essentially like an automated process. If my inference was wrong I stand corrected but regardless, you have no basis in fact to make the assumption that Linden Lab will conduct such a cursory investigation, and even if it were true, it would be true now anyway and has nothing to do with the automation of the process, and therefore is irrelevant to a discussion as to how implementing an online method of filing a DMCA takedown notice would enable griefers anymore than the existing method for filing. You mentioned the Governance Team a few times in your email but you should be advised that the Governance Team is not responsible for reviewing the merits of DMCA takedown notices. Linden Lab has copyright agents that perform this function.The written submission process is open to all as well.I don't think you understood my initial comment about the level of inconvenience to those who would only have bought content removed. I meant that if a person who basically doesn't create much or any content and does so for personal use only was specifically targeted by a griefer and named in a DMCA takedown notice by the griefer it wouldn't be worth it for the griefer to do so. Your point about the rippling effect it has on a broad spectrum of such people when a content creator is targeted is a good one though that would increase the appeal of filing a false DMCA to a griefer (thank god almost no one reads these forums because this is beginning to sound like a "how to" guide )To the extent this would even be true it would hold true for a written submission as well. The cost of a stamp is a lot cheaper than the cost of a SIM card. It's also worth noting that in the takedown notice filings that I have been involved in, the service provider has, in many cases, provided the entire DMCA take down notice to the party to whom it was filed against even without the filing of a counter notice filing. The ostensible reason provided is that the service provider believes from experience that it is helpful to the process to put the parties in direct contact with one another. It should also be noted that in one case, a service provider was able to provide us with sufficient information for us to verify the real identity of a person even though that person had provided a false identity and used a free email account.
You're wrong. I am aged verified as Pepe LePew at 7 Limburger Cheese Lane, Toontown, California.
You're wrong again. One can, however, confirm that a notary acknowledgment has been signed by an active public notary as their information including a specimen signature is on file with either the state, the county clerk, or both. I also know from personal experience that some public notaries do not observe their oaths as a public notary and will sign acknowledgments where they have not verified the identity of the person signing and in some cases have not even seen the person signing the documents if instructed to do so by a superior/employer. I once received documents that had copy signatures notarized.
Wrong again. I work with attorneys all the time so I am well aware of the realities of the costs of pursuing litigation and other legal remedies. I am also aware that these vary depending on specific facts and circumstances of each situation and not some broad assumption that every situation involves pursuing a series of multinational legal systems. Sorry, but simply saying something doesn't make it true.

And now for everyone's amusement, an example of the consequences of filing a false DMCA notice where the aggrieved person did not have to expend a significant amount of time and resources to achieve the result:

http://www.youtube.com/watch?v=T_MYyc-PtH4&feature=fvw

It's a matter of volumes.
It appears that piracy is endemic across the grid. An online filing will encourage people with genuine claims to file. While the process required a letter or fax to be composed carefully, that would have held some back. In the case of small-volume creators, they may decide to live with it.
It's always far easier and faster to do things online.
The DMCA filing then becomes less intimidating. It would begin to be perceived like firing off an AR.

It is not unreasonable to expect an upsurge in the number of DMCAs filed - particularly from the small-scale creators. It's so easy!

I used 'G-Team' loosely. What matters is that a resource within LL has to deal with the load. LL don't have a good track record of dealing with load.



I don't believe that an idle mind would have any problem coming up with anything mentioned here. It's very very basic stuff.
The point of mentioning the options here is to provoke an awareness that it is certainly going to happen. That should be taken on board by people in any discussions of the new pilot scheme for online filings.
I suspect the the pilot scheme will be driven exclusively by people focussed on the content piracy issue.






That is funny. That boy is a lame griefer, but he could do well in a job requiring public speaking. He must have practised for days and gone through a lot of takes to get it flowing so well.

However, he may have been very easy to get to.
He's in an easy jurisdiction. He probably uploaded his material direct. A single court order may have been enough to translate his IP into name and address. I haven't seen his YouTube battle with his enemy. His videos may have been full of givaways. His face is all over it. He could have been 'shopped' to the enemy by someone who recognised him.
His big mistake in the particular case was to continue attacking the same person after the takedown was counter filed.

I'm a tech. It is not particularly easy to trace an abuser who sets out to cover their tracks. That applies even if everybody and everything including the proxies used are all in the USA.
It's worth bearing in mind that USA residents are not the majority in SL.
It's worth bearing in mind that even one of a set of proxies outside the jusrisdiction introduces difficulties. In particular, a compromised server may introduce a dead end. There are millions of compromised machines connected to the Net.



ETA:

If you need some specimen signatures for notaries in a small town in Western BongaBongaland, I could probably whip some up for you. Just drop me a PM.

No, they don't have to supply a copy, they just need to identify it.

What is a "Copyright Agent" - as a person? The job title sounds impressive.
- Someone with specialised training, highly paid, non-trivial to recruit?
- Someone whose last job was burger flipping, but now has a better-sounding title?

Right now, LL's Copyright Agent may be one or more of the former.
What happens when the workload builds?

LL have to respond to the filing within "a reasonable time" or lose the Safe Harbour protection. Reasonable time is a bit loose. It is intended to allow ISPs time to have the content flush through caching.
I'm not sure that "we are too busy" would be accepted as "reasonable". The complaint has identified the content in question.

I suppose LL could decide to filter incoming online filings and do a judgement call on the person making the complaint. If we lost Safe Harbour protection from this person, would our liability be in excess of US$x?

Right now, people submit support tickets and ARs. Support tickets can take many weeks. The response may be boilerplate and might or might not satisfy the need. ARs are a black hole. SOmetimes an effect can be observed.
A DMCA filing is not a support ticket. It is a legal document. They have to respond to it - but how quickly?

To what extent will an ISP decide on the merits of a filing? To what extent will they do this with load on one side and "reasonable time" on the other?


I have this image of online DMCAs being a bit like an permanently ongoing Zindra migration.
A Zindra applicant described the location of their adult content. The Linden had a look. TP in and look around. Adult = Yes/No. The longest bit was the land allocation. The merits of the application didn't get much rigorous review. This was clear when one looks at who was getting some of the land.

Hilarious!
At the time of that posting I didn't know of VenomFangX. I just watched the video referenced.
Now that I've Googled him a bit, it's clear that his big mistake was even breathing.

"..an example of the consequences of filing a false DMCA notice where the aggrieved person did not have to expend a significant amount of time and resources to achieve the result..."
Tracking down VenomFangX would have been slightly more difficulty than finding out who is behind Microsoft, but not a lot.

Googling for "VenomFangX Thunderf00t" will pull up much of the history.
This idiot is not a good example to quote in the context of this thread. Stealth 'R Not Us !!

It can be quite difficult to hide from view if you set out to be famous.
http://www.encyclopediadramatica.com/VenomfangX

His parents must have been surprised and pleased by their son's computer skills.
You can see their pride shining through at venomfangxsite.com