Friday, November 19, 2010

Voice Of Deseret Receives DMCA Takedown Notification From Blogger Over Individual Post On Jason Chaffetz And The Contract From America

It's obvious that enforcement of the Digital Millenium Copyright Act (DMCA) is increasing. Despite one's best efforts to stay within the bounds of Fair Use guidelines, one can be tagged with a takedown notice.

On November 19th, 2010, Blogger notified me that a single post on this blog had become the target of a DMCA copyright claim. The blog itself as a whole was not targeted, just a single post. There was no demand for payment, such as those levied upon others by RIAA and RightHaven in the past. It was a September 23rd post about Jason Chaffetz and the new "Contract With America", known as the "Contract From America". To familiarize other bloggers with what can be expected, I replicate the e-mail I received from Blogger below:

Blogger has been notified, according to the terms of the Digital Millennium Copyright Act (DMCA), that certain content in your blog is alleged to infringe upon the copyrights of others. As a result, we have reset the post(s) to "draft" status. (If we did not do so, we would be subject to a claim of copyright infringement, regardless of its merits. The URL(s) of the allegedly infringing post(s) may be found at the end of this message.) This means your post - and any images, links or other content - is not gone. You may edit the post to remove the offending content and republish, at which point the post in question will be visible to your readers again.

A bit of background: the DMCA is a United States copyright law that provides guidelines for online service provider liability in case of copyright infringement. If you believe you have the rights to post the content at issue here, you can file a counter-claim. For more information on our DMCA policy, including how to file a counter-claim, please see http://www.google.com/dmca.html.

The notice that we received, with any personally identifying information removed, will be posted online by a service called Chilling Effects at http://www.chillingeffects.org. We do this in accordance with the Digital Millennium Copyright Act (DMCA). You can search for the DMCA notice associated with the removal of your content by going to the Chilling Effects search page at http://www.chillingeffects.org/search.cgi, and entering in the URL of the blog post that was removed. If it is brought to our attention that you have republished the post without removing the content/link in question, then we will delete your post and count it as a violation on your account. Repeated violations to our Terms of Service may result in further remedial action taken against your Blogger account including deleting your blog and/or terminating your account. If you have legal questions about this notification, you should retain your own legal counsel.

Sincerely,

The Blogger Team

Affected URLs:

Note that the notice did not specify which part of the post attracted attention. As I recall, the post in question, which discussed how Congressman Jason Chaffetz was supporting the new Contract From America, had three specific elements: An embedded news video from KSL Channel 5, an embedded document from Scribd, and a brief summary of the four main points of the Contract From America from a CNN story. To the best of my knowledge, I had complied with Fair Use guidelines.

It is most likely that the complaint may have centered around the Scribd document embedded, or perhaps CNN thought I'd republished too much of their story. It would be useful if, in the future, Blogger would specify which parts of a post create this problem.

I could have chosen to file a DMCA counterclaim, if for nothing else, to expose the chilling effects of the DMCA upon free speech. But one must pick the right time and place to fight such battles. After re-examining the post in question, I decided it did not convey vital information and was no longer pertinent. So I deleted it altogther and informed Blogger of this decision by e-mail.

Considering that I have 974 posts on Voice Of Deseret since 2007, I should consider myself fortunate to have been the target of only one copyright claim so far. The U.S. Copyright Office admits that the dividing line between Fair Use and infringement can be murky, difficult to define, and vary from one originator to another. I appreciate the fact that the claimant, whoever it is, offered me the opportunity to remove the disputed material before pursuing other legal action.

Just remember in 2012 that one of the lawmakers we have to thank for DMCA is Senator Orrin Hatch; he took a leading role in its passage. If you think DMCA is too stringent, then hold Hatch accountable in 2012 the same way we held Bob Bennett accountable for his "sins" in 2010.

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