Let’s not bicker over terminology: I think we can both agree that uploading the latest pop song is obviously infringing, whereas SC:O is a significantly more nebulous situation.
Have you not encountered the concept of fan-fiction? That’s… basically the entirety of their defense, and they’ve been thriving lately.
I realize that you’re legally correct, but once again: that has absolutely no bearing on what I’m discussing. No one is claiming the DMCA was illegal. They are claiming it was abusive.
peterb
2992
Perhaps you should define what you mean by “abusive” because it frankly isn’t clear. Does “abusive” just mean “I don’t like it when people use this law in the exact way it was intended to be used,” or something else?
I already did: For the purposes of this conversation, “abusive” is using the system to target nebulous situations, and those where only a small portion of the work is actually infringing. The actual intended purpose is held to be taking down clearly-infringing work, such as whole-sale piracy.
If you can provide some source saying that the intent of the law was indeed to use it to resolve nebulous edge-cases where a small portion of a work might be infringing, I’d be happy to reconsider my stance.
Granath
2994
If you can show this is a nebulous edge-case, I would be happy to consider your position.
Nebulous: The question of whether hyperspace, or any other element in SC:O, rises to the level of actual copyright infringement is an open question, and even pro-P&F supporters agree to this assessment.
Obvious: If I try to sell Star Control 1 & 2.
I’m really not sure what else you need?
Thrag
2996
Yes, SC:O is not like literally reselling SC2. If that’s your line, if you hold the opinion that any DMCA over not literal piracy is abuse, you are free to feel that way. I’m not going to agree with it.
Abuse typically means exploiting something to do negative things outside the bounds of the spirit and intent of the thing. The DMCA was used properly in regards to the intent and spirit of the law, not just the technicalities. This isn’t anything like a case where a video gets a takedown for a song picked up faintly in the background.
Your issue seems to be with the DMCA itself, and current copyright law in general. Infringing a little is still infringing. Try to publish your fan fiction for profit and you very likely will get sued. You can disagree with that, but that doesn’t make it abuse. If you want to argue the nature the DMCA and copyright law that’s all well and good but not liking the current laws doesn’t make using them properly abuse.
Fair enough. I had never previously encountered the notion that simply because something was legal, it was also ethical and moral. We obviously disagree strenuously there, and I think your logic extrapolates to a lot of abhorrent conclusions, but at least we’ve identified the source of disagreement.
Granath
2998
Your entire premise is flawed. Here is the issue per your own words:
“any other element in SC:O”
This has nothing to do with any singular element. It has to do with the combination of all similarities and how the whole comes together. This is not as simple as reselling (stealing) someone’s entire product or lifting a rift from a song. This is much more like the Blurred Lines case where multiple borrowed elements come together to create a possible infringement. If you insist on considering everything separately then your analysis is being performed inconsistently with the way the laws are written.
EDIT: To try to provide an example, if I write and sell a book about a boy wizard, a boy with a lightning bolt scar, a magical school, a boy named Harry, an evil dark wizard or a boy who is orphaned none of these are infringing upon Harry Potter. However, they certainly do when combined together.
peterb
2999
But…but…that’s not what the law…says?
The DMCA doesn’t say it only applies to “clearly-infringing work”, or anything of the sort. The DMCA’s intent is to balance the rights of copyright holders and of service providers. To this end, it specifies exactly what is required (a good faith belief of infringement, notification requirements) and even provides for procedures to be used when the situation is nebulous, which is why there are provisions for counter-notifications. If it was only intended to be used when works were “actually infringing” (by which I’m inferring you mean something like “It’s totally obvious!”) then the law wouldn’t need those provisions. But it does need those provisions. Because determining copyright infringement is often nebulous.
Lastly, the DMCA provides penalties for misrepresentations! So we don’t have to make up our own personal examples of what we, personally, think are abuse - the law defines what abuse is by saying “if you misrepresent something in your infringement notification or your counter-notice, you’re liable for damages.” Given that F+P haven’t been found liable for such damages (nor will they, at least on this particular issue), my position is that your characterizing this as “DMCA abuse” simply has no basis in fact.
Look, I can be critical of slave-owners even if that slavery is legal. My qualm is with both them, personally, as individuals, AND the system of slavery as a whole. I would go so far as to say that owning slaves is, yes, abusive, immoral, and unethical.
I realize the DMCA is on a vastly different scale than slavery, I’m just trying to communicate the concept that “legality has nothing to do with morality”. Please stop explaining the law to me. I know what the law says.
Thrag
3001
You are kinda misrepresenting people’s positions here when people are being rather polite in explaining their positions. Nobody has stated that just because something is legal it is ethical and moral. In fact verbiage has been dedicated to separate the technically legal from the completely within the letter and spirit of the law. Don’t do what you are doing here.
Your issue with not with this use of the DMCA, but with the DMCA itself. It is designed as a mechanism to give safe harbor to publishers in situations of alleged infringement. Your disagreement is with the very purpose of the law.
If you have “abhorrent conclusions” to discuss go ahead. Lay them out. Change people’s minds. I know that seems a crazy notion on the internet, but we have proof of it happening just above (I’m just as amazed as the rest of you).
No, I have no qualms with the DMCA being used to take down Star Control 1+2. My objection is to the usage in taking down SC:O. Please stop misrepresenting my position.
peterb
3003
Copyright is positive, not natural, law, by which I mean that copyright only exists because statutes define what it is and how it works. To the extent a statute permits a copyright holder to take a certain action, it literally defines what the proper use of it is. This is why I asked you to expand on what you mean by “abusive”, because I don’t believe your current use of that term is sensible in the context of copyright law.
It defines what the legal usages are, but this has no bearing whatsoever on whether those usages are ethical. This is, again, a conversation about ethics, so I’m not sure why you keep going back to legal definitions.
I’m really not sure how to make this clearer, so I’m going to just bow out from this sub-thread.
peterb
3005
I’m asking you what the ethical imperative is that requires a copyright holder to not enforce their rights given a good-faith belief that infringement has occurred (which is required by the statute). You keep asserting that you think it’s unethical but you haven’t (as near as I can tell, maybe I’m missing it) said clearly why.
Thrag
3006
I understand that you don’t disagree with some instances of the law being applied and that you personally draw a line in the realm of outright piracy. I clearly noted this in a prior post. I have not misrepresented your argument.
What I am saying is that takedowns of things like SC:O where infringement is “nebulous” is the very nature and purpose of the law, thus your disagreement is with the law itself.
Granath
3007
I am not being mean but I, and I think others as well, do not understand your position even though we are honestly trying. You use terms like abusive without defining what that means. When asked to explain your reply shows a lack of understanding of what copyright law entails. When that is explained you seem to backtrack to your position that it the use is abusive and we are no further along in the discussion.
You go on to talk about ethics without pointing how how the use here is unethical. We do not understand if your issue is with the law itself or this specific application of it. I think you will have a lot of supporters for the former but may have to better explain if it is the latter.
Thrag
3008
Don’t. Make your argument about the ethics of it. Show that you have fully considered the logic of your position in regard to the DMCA and copyright law and why it is the most ethical one.
If a copyright holder has no recourse against an allegedly infringing party other than concluding an expensive lawsuit what are the implications of that?
If the DMCA process were to be modified to differentiate between “some infringement” and “piracy” how do you define what is DMCA’able in a way that it doesn’t require a judge or jury to make a call first?
Given that DMCA is not really about the rights holder or the allegedly infringing party, once judgement is made how should the sticky situation of a content host’s liability be resolved? They made money off the infringing content but they may not have been a knowing party to it. The DMCA is basically a process by which a host can insulate itself against liability, from either side in a dispute, by making sure they’ve done a minimum to verify the good faith nature of the notice or counter notice. How should that be reworked or replaced to have a more ethical system?
Alright, as requested:
My stance is that it’s abusive to use the DMCA to take down a work solely because some minor elements may rise to the level of “sufficiently similar”.
The critical distinctions here are that:
- Sales were disrupted
- Only minor elements are copied
- It’s ambiguous whether those elements are actually infringing
To be clear: all three must apply for my argument to be relevant; I’m not discussing situations where someone uploaded Star Control 1+2, or copied an entire chapter from Harry Potter.
I would argue it’s unethical in this case because P&F gain nothing from issuing this DMCA. They knew Stardock would issue a counternotice and/or indemnify GOG and Valve, so the work remains on sale. (If there’s some significant gain to P&F for doing this, please do correct me)
Assuming no significant gain, that means P&F are risking harm to a potentially-innocent party for literally no gain. I feel like it’s self-evident that risking harm to innocents is always bad, and that it rises to the level of “abusive” if there’s no counterbalancing reward to offset that risk.
I’d further argue that, as a general policy, using the DMCA against elements which are both minor AND ambiguous risks significant harm to innocent parties, especially those which don’t have the financial resources to issue a counternotice or otherwise oppose the action.
Venjer
3010
What course of action would you have taken if you were Paul and Fred in place of the DMCA? If you feel it was immoral for them to have taken his step I think it’s fair for you to state what you believe would have been the proper course considering their current position.
