Prepare for more DMCA esoterica ahead.

In a previous entry I discussed the gaping holes in our understanding of the rules of evidence related to Web pages. Now the Ninth Circuit has rendered a decision on another important aspect of how the DMCA is to be used: what counts for takedown notice.

The case, Rossi v. MPAA, involved a person who maintained a site (internetmovies.com) offering "downloadable movies." The MPAA filed for a takedown and Rossi sued, claiming that the DMCA's takedown provision (formally known as Sec. 512(c)(3)(A)) required the complainant to engage in an investigation to determine if the subject material was indeed in violation of their copyrights. The MPAA argued that the law simply required a good faith belief.

In essence the question is whether there is an objective standard for violations or whether a subjective standard is good enough. What Judge Johnnie B. Rawlinson has said is that faith is sufficient under the law. The DMCA does include releif for people who have been the subject of improper infringement notices, but that releif requires showing that the complainant acted in bad faith, or knowingly misrepresented the situation.

That may be the way the law is written, but it imposes a difficult standard to meet and one that effectively gives free reign to the filing of complaints. We already have evidence for this, as I mentioned back in May, when I blogged a talk by Verizon general counsel Sarah Deutsch in which she complained of a "blizzard" of takedown notices (over 30,000 in one month) most of which are auto-generated and most of which are wrong. As Rossi's defense argued, the equivalent argument would be that a book should be taken off the shelves for plagiarism merely based on what is on the cover, without the need to find any actual plagiarism in the text.

I feel this is a bad section of the law and I hope that an en banc hearing will delve more deeply into the First Amendment issues raised by this kind of suppression. I continue to hold out little hope that the SCOTUS will take a case like this.