EFF Compliance Bootcamp Notes

This past Wednesday, Chris and I were in San Francisco to attend the EFF’s Compliance Bootcamp. It was a great event that covered many of the aspects of federal law that might be relevant to contemporary web startups from privacy to trademark infringement to evidentiary procedure. The EFF staff and the attorneys of Vogele and Associates (who hosted the event) brought a highly concrete, practical-minded approach to their topics, focusing tightly on the effects these laws can have on the day-to-day operations of web-based business.

The relevant session for Grabb.it, the session that brought Chris and me the 600 miles down to the bay covered compliance with everyone’s favorite federal law, 17 USC 512, the Digital Millennium Copyright Act. Hosted by Colette Vogele, the founder of Vogele and Associates, Jonathan Band, and EFF Senior Staff Atorney, Fred von Lohman, the session covered all the major issues around the DMCA including explaining each of the four scenarios that have to be in place in order for it to apply — the so-called ‘safe harbor’ conditions — as well as the procedures involved with receiving takedown notices and how to respect user rights in the process (See my notes on the session for all the gritty details).

Beyond getting to pick the brain of Fred von Lohman (council for the defense in MGM v. Grokster and one of the two or three foremost experts in American copyright law) about Grabb.it for ten minutes, the best thing I took away from the session was a real understanding of the functional purpose of the DMCA takedown process.

Before the DMCA, copyright holders discovering infringement online had basically no legal recourse other than suing the site hosting the infringing content. Now, the DMCA provides for an intermediate action: issuing a takedown notice.

Say MGM discovers a clip from one of their movies on YouTube. They send an official takedown notice to Google who removes the clip and makes note of the event on the account of the user who uploaded it (purging repeat infringers is required to ensure continued DMCA coverage). Google also informs the user of the action and offers them a chance to issue a counter claim if they believe MGM acted in error or their upload is covered by Fair Use doctrine or some other copyright exception.

This process allows the hosting site to act as an intermediary between the copyright holder and the user — the two parties between whom the conflict actually exists — rather than having to absorb the full wrath of the copyright holder themselves when it should rightfully be aimed at the uploading user. The copyright holder gets their content removed from the web and the site owner can continue to operate without having to deal with crippling, expensive, time-wasting lawsuits. Of course, if the copyright holder is not satisfied with the process for whatever reason (for example if they object to the very existence of the site itself, like Viacom seems to do with YouTube), they can still sue. But, in most cases they can get what they want with a lot less cost and effort.

Rather than worrying about the Doctorow-ish pound-your-fist-on-the-table gross inequities that the DMCA might bring to national and international information and technical policy, this perspective lets us focus on the concrete dangers and opportunities it presents for our business — the things we can do to make it easier for copyright holders not to sue us and the ways in which we can help users do what they want while staying within the confines of the law.

Thanks to the EFF what was previously a source of confusion and fear for us is now one of operational confidence and new strategic ideas. Quite a lot to get out of a one day session!

Tagged: eff, dmca, copyright, compliance, takedown