I recently received a DMCA takedown notice from Steve Krivit, based on the copying of his recent post at NET: The Selling of Iter. It was a standard DMCA takedown notice, for alleged copyright infringement, forwarded by my domain host. They had not taken down the page, nor had they shut off my hosting access, but if I did not act quickly, they might do both. To quickly resolve this I modified the page to the present state, wrote a counter notification following DMCA form, and submitted it. Then I researched my host’s specific policy.
It is what is called “DMCA+” enforcement, enforcement that goes beyond the safe harbor provisions of the DMCA, enforcement that defacto treats all complaints as if showing actual infringement. Yes, they provide for counter notification, but … it implies that they will take the host account down, pending resolution, and if the complainant files a federal action, it could take a year or more to resolve. That is not what the DMCA requires for them to be safe. There is a requirement for hosts to take down “repeat infringers,” but a complaint does not establish infringement. In my research, I found that legal sources advised filing a counter-notification if one has a good faith belief that the usage was not infringement, because hosts may consider a complaint with no counter-notification to be a valid complaint.
However, my host’s policy implies that if a counter notification is filed, they will remove host access pending resolution. Further, it requires that the subscriber consent to the jurisdiction of the U.S. District Court for Arizona, where their corporate office is located. That is a blatant error, because any legal action would not involve them, but rather the copyright owner would file against the alleged infringer. The DMCA provision is fair. Their interpretation is not.
This is part of a long-term trend (I’ve seen this over many decades) toward making copyright, originally short-termed, almost permanent, from political pressure from copyright owners, mostly large conglomerates. Eternal vigilance is the price of liberty, but these people have money and power and use it. Copyright law is also used to suppress critique. It is difficult to critique an article without copying content, and if one only presents part of the content, there is a ready accusation that one has cherry-picked it. So, sometimes, I have copied entire articles for purposes of criticism. That is an extreme, and I could modify that practice, and from what I have found, now, as a practical measure, I will.
From this situation, I discovered hypothes.is, which is an internet annotation engine. It appears that with hypothes.is I can annotate any accessible web page, and the annotations will be available to any viewer who accesses it through hypothes.is. So that’s what I’ve done with Krivit, and hypothes.is makes it so easy that I will now be writing article critiques using it. Not only have I copied most of my original critique of the Selling of ITER to annotations on http://via.hypothes.is/http://news.newenergytimes.net/2017/01/12/the-selling-of-iter/ , I have also annotated other NET pages.
https://hyp.is/cvzCDOS4EeaChPP_87Ywnw/news.newenergytimes.net/2017/01/19/former-iter-spokesman-confirms-accuracy-of-new-energy-times-story/ in which Krivit’s headline misrepresents what he was actually told, typical for Krivit.
https://via.hypothes.is/http://newenergytimes.com/v2/sr/iter/Supplement-to-The-Selling-of-ITER.pdf
Because this is so easy, I may now start to much more thoroughly review New Energy Times, going back.
Hint: if you want to motivate Abd, tell him to shut up. His teenage “You Can’t Make Me” is fully activated by this. Works like a charm.
Now, this case. There is no controversy over Krivit owning the copyright to his own work. To host the entire work, more than a little of it, as-is, say as a media file here (as I host Rossi v. Darden files), would clearly be copyright violation. However, the claim is fair use. It’s ironic: Krivit has long hosted many files as “fair use,” as-is. Since I noticed this in 2009, I considered it a weak claim, vulnerable, but … he was a nonprofit then, and could do this, my opinion, as long as he immediately took the content down on request. For-profit organizations can also claim fair use, but nonprofits have a leg up. NET is apparently no longer non-profit.
How an actual court in a real case would decide is unclear. However, all considerations but one point to fair use. I’ve read case law on this. I would place the probability of a court confirming fair use for what I did here at about 99%. And I might file a counterclaim for harassment, i.e., he should have known, given his own experience with fair use. Just sayin’.
From a Fair Use Checklist. (released here).
The considerations:
- Purpose. Research, scholarship, nonprofit, criticism, comment, news reporting (what NET publishes is news in itself), transformative use (this was not simply a copy). Credit was not denied, but owner copyright was affirmed.
- Nature. Original was published work, purportedly factual, important to educational objectives (for coldfusioncommunity.net). Not unpublished, highly creative, or fictional.
- Amount. Appropriate for favored educational purpose. However, entire work was quoted, interspersed. Within each section. Quoting the entire original rather than cherry-picking ensures that quotes are fairly chosen, not adversely selected to create a possibly misleading impression.
- Effect. No significant effect on the market or Reasonably available licensing mechanism potential market for copyrighted work. No similar product (i.e., the whole critique) marketed by the owner. However, critique including original was made available on the web to the general public. (No effect on market is crucial in cases I have read. Basically, no damage to copyright owner.)
Because I can accomplish a similar purpose at this point without risking a DMCA takedown, I might only reassert the content if necessary from Krivit’s taking the original down on NET, a decision I would make at the time. Krivit could also make this unnecessary with a take-down or clear modification of his own. If he recognizes his own error, I have no desire to rub his nose in it, my concern is only when he keeps pushing it, as he did, converting “ITER lies” to “misleading,” but both were invented by him and unsubstantiated as to actual misleading effect, and he is promulgating his own warped and hostile judgment, his yellow journalistic agenda, as he has with many other issues.