The Electronic Frontier Foundation does a little scorecard thing on which online services “have your back” in regards to the filing of DMCA notices. Which is very sweet and all, but it omits one salient fact:
It is completely irrelevant bullshit if you live outside of the US.
I’ve been through this. A few years back I nearly got kicked off my then web hosting provider when I got served a bunch of DMCA notices from an Unnamed Video Game Company for hosting images from the NDA’d beta of its game. The irony here was that I’d never signed the NDA (so wasn’t bound by its terms of non-release of content), and was using said images in a way that would most likely be considered fair use under US law. I could have filed a DMCA counter notice in order to get my content–and good standing with my provider–restored, and investigated the process for doing so. Only problem? Included in the filing of a counter-notice is the agreement to be subject to prosecution under US law. If you actually are a US citizen this is NBD, but if, like me, you’re not?
Yeah. Fuck that shit.
What this essentially means–and what the EFF conveniently forgets to mention–is that there is basically no way to fairly contest a DMCA notice if you’re a non-US citizen. All the “transparent processes” of providers become pretty irrelevant in the face of that one fact.
This, incidentally, is why I no longer host my website in the US.
The reality is that the DMCA process is inherently designed to punish individuals at the expense of copyright holders, almost all of which are (nowadays) large corporations. Which is great… if you’re a large copyright holder.1 All its safe harbour provisions are designed to do is get hosting providers out of the firing line, because hosting providers–the Googles of the world–are potentially the only organisations large enough to be able to actually contest the DMCA process itself. If there’d been no get-out-of-jail-free card for them, in other words, the system would never have gone into operation in its current form. That means no hosting provider “has your back” with regards to the DMCA; they are all complicit in it.
Don’t get me wrong, this isn’t a criticism of the providers per se; what they did makes commercial and legal sense for them. But what is is doing is critiscising the EFF for their bullshit “report”.
Implementing a corrupt process “well” is still implementing a corrupt process.
- Fair disclaimer: I have, in fact, invoked the DMCA on occasion. Well, I’ve had my publisher invoke it, to remove copies of Liesmith from fake ebook stores, i.e. ones that charge money for pirated works. That one I don’t feel particularly conflicted about, personal dislike of the DMCA or not. [↩]