Regarding your coverage of the so-richly-deserved EFF suit filed against Michael Crook on 27b/6 & boingboing, you both repeat the assertion that an ISP has to (BoingBoing) "take immediate action, even before proof of copyright ownership was examined" or (27b/6) "act immediately to have an image removed, even before they check if the claim is correct."

An ISP has to act "expeditiously" under the Act, and the Act was totally designed to work just like you describe, BUT this doesn't prevent the ISP from notifying her client/subscriber BEFORE pulling the content . This might seem like nitpicking, but it can be vital because it can let lawyers get involved to enjoin the takedown, all without risking the ISP safe harbor.

Say Laughing Squid gets a DMCA notice from the DoJ in the email Monday morning over Xeni's scoop publication of the "Pentagon 2" papers - critical stuff for free press and democracy - if they notify Xeni, saying they're pulling at 5pm, she can call Jason Schultz, who can get an injunction at the courthouse that very afternoon telling Laughing Squid to ignore the DMCA notice. Speech isn't censored, the press isn't restrained, all's well...

The point of your statements, that the takedown process is "shoot first, ask ?s later" is totally spot-on, and a major flaw of the Act, but there are still other meaningful checks within the legal system to ensure fairness.

The more ISPs know that notice CAN happen first, even though it only HAS to happen after pulling, the better off the internet is. Better to spread the word that the takedown process isn't a lockstep, uninterruptible process, even if it was lobbyist-designed to be one. Then the Michael Crooks of the world might be less likely to abuse it.

posted by Xeni Jardin at 07:46:25 PM permalink | Other blogs' comments