Servicing 400 million visitors accessing 13.1 billion pages each month is no mean feat, and with so much user-generated content on-board it’s obvious why the company has a keen interest in the DMCA and the protections it offers service providers.

Speaking today during a House Judiciary Subcommittee hearing on Section 512 of Title 17, Automattic General Counsel Paul Sieminski spoke about his company’s experiences with the notice and takedown provisions of the DMCA. Noting that the process works well overall, Sieminski said that shortcomings in the system negatively affect freedom of expression and adversly impact companies like Automattic.

Sieminski says that significant resources are being diverted away from product development at Automattic in order to deal with overbroad and abusive DMCA takedown notices. On the one hand the company wants to ensure freedom of speech, but balancing that with its legal commitments under the DMCA is not an easy task.

“At Automattic, we’ve seen an increasing amount of abuse of the DMCA’s takedown process. The DMCA’s takedown process provides what can be an easy avenue for censorship: simply send in a DMCA notice claiming copyrights in a piece of content that you don’t agree with. Regardless of whether you own the copyright, the service provider that hosts the content must take it down or risk being out of compliance with the DMCA,” the lawyer explained.

Sieminski went on to detail several cases where the DMCA had been abused to stifle speech, including one elaborate scam in which someone tried to undermine the work of science journalists by copying their work, backdating it, and claiming copyright in order to take down the original content. Although the journalists filed a counter-notice, it took the full 10 days mandated by the DMCA to get it put back online.

Another case involved a UK-based journalist who reported on a freely-given press statement. The source of the press release changed his mind on having it published, claimed copyright, and had the journalist’s work taken down under the DMCA. Concerned about submitting to the jurisdiction of a US court (those submitting a counter-notice are required to reveal their name and address and agree to be sued in federal court), the journalist chose to back down. His report remains censored to this day.

As reported here on TF on many occasions, wrongful DMCA notices are sent on a daily basis, many the product of automated systems that lack the finesse to correctly identify infringement, much less consider fair use situations. Add these notices to the millions already being sent and they often go undetected, taken down by nervous service providers wary of becoming liable for the infringements of others.

According to Automattic, a solution needs to be found.

“The DMCA system gives copyright holders a powerful and easy-to-use weapon: the unilateral right to issue a takedown notice that a website operator (like Automattic) must honor or risk legal liability,” Sieminski explained.

“The system works so long as copyright owners use this power in good faith. But too often they don’t, and there should be clear legal consequences for those who choose to abuse the system. I’d urge the Committee to add such penalties to the DMCA to deter and punish these types of abuses,” the lawyer concludes.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Then in May, Juan had a home visit from individuals who said they were from the court. Handing Juan documentation he didn’t understand, they gave the impression that they had a warrant to enter his home and make an inspection of his computers and hard drives.

In fact, it turned out one was a lawyer for SGAE, the second a SGAE computer expert and another a clerk, who had come looking for the stats from Elitemula and Etmusica, which supposedly reflected the downloads of music made via links on those sites between September and December 2007.

They searched the entire house, going through both Juan’s and family members’ possessions. Finally Juan managed to get lawyer David Bravo on the telephone who, along with Javier de la Cueva, were the legal team for P2P developer Pablo Soto. Bravo confirmed that the supposed warrant did not authorize the individuals to be in Juan’s house and ordered them to leave.

TorrentFreak has been in contact with Javier de la Cueva, who was able to give us an interesting update on the case.

A Spanish court, after initially submitting to requests by SGAE that both Etmusica and Elitemula should be closed and hard drives seized for evidence, has now revoked the decision after demands by Juan’s lawyers. The hard drive evidence was dismissed and both sites can now be reopened.

“The reason for reopening the websites is that a hyperlink, per se, does not violate intellectual property law,” Javier de la Cueva told TorrentFreak.

On the dismissal of the hard drive ‘evidence’, Javier explained that this was due to their proof that it is impossible for the site’s users’ sharing statistics to be stored in it.

“As I said in the hearing: how can it be that an interchange between a Polish and an
Argentinian would be registered in [Juan's] hard disk if not even a single bit passes through my client’s website? I explained to the judge how P2P networks function and he was convinced that this evidence is impossible and useless, so he annulled the previous resolution held by the same court.”

Javier also explained that it’s important to note that SGAE requested injunctions to be taken out on Etmusic and Elitemula without summoning their client.

“When this happens and injunctions are adopted, the defendant should have the opportunity of opposition, and this is what we have won,” he told us.

Furthermore, SGAE ‘forgot’ to tell the court that earlier criminal proceedings brought by PROMUSICAE to achieve preliminary injunctions against both sites, had already been dismissed.

Due to this unfortunate bout of amnesia, SGAE has been fined 500 Euros for ‘mala fides’ (operating in bad faith) as it was concluded that there was an intention to avoid the defendants right to a defense.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.