Legal/DMCA: ok, so what happens if..

I know that people here aren't lawyers, but I'm not about to violate anyone's content rights myself, so I'm not asking for direct legal advice. But still:

Background: the UK (and other countries) don't have a DMCA law. The UK is used in these questions just as an example, almost non-US country could apply.

Case 1. A UK-based content creator, call them A, sends LL a DMCA takedown request for some of their content that they claim has been copied by another person B, who is in the US. What happens?

a) LL do not take down the content because, being outside the US, person A is not protected by the DMCA.
b) LL take down the content. B cannot counter-claim because A is not subject to the DMCA, and thus no law applies to them that would make the false takedown notice a crime.
c) LL take down the content. B cannot counter claim, because although A has broken the law, he is not in the US and so cannot be brought to trial.
d) LL take down the content. B can counter claim, and if he does, A will be deported by force to the US to face the trial there.
e) LL take down the content. B can counter claim, and will succeed automatically unless A travels to the US to defend himself.

Case 2. The other way around. This time our content creator, C, lives in the US and files a DMCA takedown notice against D, who doesn't live in the US. What happens?

a) LL do not take down the content because, being outside the US, person D is not subject to the DMCA.
b) LL take down the content. D cannot counter-claim because, since they are not subject to the DMCA, there is no law for them to counter-claim under.
c) LL take down the content. D can counter-claim, but only if he travels to the USA in order to do so.

Case 3. This time, bouth our content creator E, and the target of the takedown notice F, are in the UK.

a) LL do not take down the content because E is not protected under the DMCA and F cannot break it.
b) LL take down the content. E cannot counter-claim because he has no local law to claim under and likewise F has no law making the false claim a crime.
c) LL take down the content. If E counter-claims then, even though both E and F are in the UK, both of them are required to fly to the US for the trial.
d) LL take down the content. If E counter-claims then the result is a trial under a US law in a UK court.

I believe, in any case, LL will take down the offending content once it's shown that the content has been compromised regardless of location. Think of SL as a country without boarders I guess (heh, just like the US).


http://www.secondscripter.com/

I can't point to anything specifically, but I think a Linden, if not LL itself (slight difference since a Linden doesn't speak for the company), mentioned that LL would be fulfilling DMCA filed regardless of origin sometime shortly after the copybot drama ensued.

I don't see any of the options applying really. A DMCA isn't a trial or even an intent to go to court. It's merely a 'legal' notice that's filed that can act as proof *if* either party ever does goes to court.

Noone has to file a DMCA, you can go to court first thing. A DMCA is really nothing more than a "take this down" and a counterfile "no, put it back" as far as I understand it at the very core.

Filing a DMCA in no way proves that you do actually own the content you're filing one about and in the same way not counterfiling isn't an admission or poof that you actually did infringe on anything. It takes a court to establish both.

My guess would be:
f) Country of residence makes no difference. A files, B can counterfile. If B does, A needs to take B to court or let the issue go unchallenged. The DMCA may or may not apply and may or may not be recognized as a legal document if it does go to trial *somewhere*.

Same for cases 2 & 3.

(Personal guess really, not a lawyer )

(Edited to add that you could always email [email]removals@lindenlab.com[/email] and ask for their actual policy on it. And please do post back if you get a response )

There's a difference too between the DMCA (the law) and Linden Labs's DMCA policy (the procedures it takes to enforce its responsibilities under the DMCA).

Linden Labs's policies are designed in part (or in whole) to keep it's status as a common carrier, and those avoid lawsuits based on users posting infringing content.

Such a policy needs to be not just a well-written policy, but a well-enforced policy.

Violating the DMCA law is a higher risk than violating any user's rights based upon erroneously removed content. Any liability from the latter is limited by the TOS, in which Linden Labs carves out the right to remove content for any reason.

Any doubt in any case is going to be resolved in favor of applying the policy consistently and making strict adherence to the DMCA. The particularities of how individual residents' can protect their rights, based on jurisdiction, isn't going to be much of a factor in any DMCA decision.

By understanding the importance of the DMCA policy to Linden Labs, and the bottom line for Linden Labs, you can probably figure out the outcome of each individual instance.

(Which I won't attempt to do. I've already spent too many years of my life in school. At some point, I'm allowed to stop taking tests.)

The origin of either grid-resident involved is unfortunately completely irrelevant. LL physically resides in the US. They are taking advantage of the "safe harbor" clause in DMCA law. A request itself, is legally nada. But by complying LL avails themselves of the legal outclause. Plus as mentioned by Amity, the TOS is a huge aspect of LL DMCA policy. The servers are LL property and they can do whatever they want, with *or without* reason. Basically by using their service we agree that they can remove lock-stock-and-barrel on a whim, which is very nearly what a DMCA request is. By complying their backside is covered from all angles. So in all cases LL will almost certainly comply with the DMCA request at least initially. Filling a defense gets a whole lot murkier.

I thought that you may be interested in these articles with reference to IP rights also from these pages is a mine of information:

http://www.fipr.org/copyright/eucd_intro.html

"The UK implementation of the EU Copyright Directive"

http://en.wikipedia.org/wiki/European_Copyright_Directive

"Directive on the harmonization of certain aspects of copyright and related rights in the information society"

The EUCD has been implemented in all EU member countries so to me & IANAL that says as long as you are in country that subscribes to the DMCA or the EUCD your IP rights are protected under law.

However the bottom line is as i see it, that LL has the right to take down anything at anytime if they see fit

Warmest

Lord

gah. Those articles site they began in 2001, yet "As of September 2006, only Spain and the Czech Republic had yet to implement the Directive at the federal level." Are they *still* working on it??? They're still trying to put into law stuff from 7 years ago? The entirety of SL's existence has occurred since then. Law bodies simply cannot cope with the rate at which digital mediums expand and evolve.

So we can't get room and board in the US?

So in other words.. an EU citizen can ask LL to take down a US citizen's work under the DMCA; LL will do so (they have to because they are based in the USA); and then the US citizen has no way of getting their work reinstated or claiming damages, because no law makes the false claim a crime for the EU citizen, and he can't be sued in a US court anyway?

If that is really true it is an extreme danger for everyone

That's why, if Second Life is to ever be a true business platform, Linden Labs needs to do more than just minimally cover its legal tail when it comes to content protection.

Again, a DMCA notice is NOT a binding legal document. It isn't an injunction, and it isn't a court order of any kind.

It is a LETTER, sent by a private entity to another private entity, notifying them that they are potentially hosting infringing content, and they need to investigate and take it down.

LL can choose to honor it or not, based on their legal interpretation of what it says and who is sending the notice. If they choose not to honor it, they COULD be sued for contributory infringement. There is no absolute mandate that they must do it. Quite a few ISPs have refused to honor DMCA notices, either because they weren't filed properly, didn't provide enough information to properly identify the infringer / infringing content, or were otherwise bogus.

Likely, someone would have to go to a great deal of effort to fake a DMCA notice good enough for LL to take it seriously and actually remove content.

However, that's just my take on it, and I am not a lawyer.

no that's not exactly true.
"userEU" sends LL a DMCA *compliant request*. This is a piece of paper, not an official court document yet.

In theory, M Linden could wipe his backside with it if he chose, but he wouldn't. By complying with the request, LL becomes protected from *future litigation* by the DMCA "safe harbor" clause. So they would pull all sited "allegedly infringing" content, of say "userUS".

userUS is notified by LL of the claim. userUS may file with LL a counter-claim. As long as that claim dots every i crosses every t, then LL will put the stuff back. (the stuff needs be put back exactly as it was, that's another thread).

LL notifies userEU of the counter claim. At that point it is up to userEU to file *legal* proceedings aka lawsuit if they feel strongly enough that their content was stolen. aka if userEU was legit to start. They essentially have two choices then. They can file EUCD in their own country. Charges could only be effective if userUS is extradited or voluntarily goes to userEU's country. OR, userEU could hire an intenational copywrite lawyer and file under DMCA in the US and the trial would prolly be in Calif. It would have to be a pretty darn big case to bother.

If userEU was a griefer in the first place, and userUS feels significantly wronged (monetarily) that it is worth it, they have similar options. File in the US and hope userEU is dumb enough to travel there, or suck up the expense of filing themselves in the EU.

***or at least that's my non-lawyer comprehension of everything I've read***