[T]he DMCA makes it far too easy to remove stuff that shouldn't be removed. In fact it seems to me that the DMCA is flat out a badly written law. It makes a lot of perfectly harmless things illegal, makes a bunch of things that should be easy difficult and vice versa. In other words, no matter whether you agree with the aims of the law or not is irrelevant because the law doesn't really deliver on its stated aims but is a mess. Indeed on the scribd blog the EFF legal reposnse makes it clear that the DMCA in fact allows scribd to do the slopey shoulders trick and disclaim any responsibility for anything and shove the blame right back to the SFWA.What I didn't add precisely but should have was that the DMCA makes it relatively straight forward for large corporations with lawyers on the payroll to protect their IP but makes it a lot harder for smaller, less lawyer happy, folks such as your average writer or man in the street. As witness this tale about Google, Orkut and Flickr.
Imagine if you walked into Scotland Yard to report a crime involving children, only to be given a telling off, before you'd opened your mouth, about the dire penalties for wasting police time. And that your complaints would be forwarded to a watchdog - and that you'd better come back with a lawyer.
That's how a group of parents feel after seeing photographs of their kids defaced on Orkut. Members of Google's social network created "mash-ups" of photographs originally posted to Flickr - adding text, some of which contained sexual innuendo, for children as young as five.
The upset parents turned to the provisions of the Digital Millennium Copyright Act (DMCA), which permits private copyright holders to deal with infringement, without going through a lawyer. [...]
[I]t's been used by thousands of individuals, including many artists, and remains the most powerful tool for the ordinary citizen to seek redress without expensive litigation. It's a question of filling out a simple form.
Not that you'd ever guess from Google's page for DMCA complaints. The web advertising giant turns the presumption of guilt back onto the complainer.
Google warns that if they're not sure they own the copyright, they may face $100,000 fines. Ominously, it says their complaint may be forwarded to "Chilling Effects" - which monitors vexatious abuse of the Act. [...]
One parent, Dave from Nottingham, told us he thought Google should be trying harder to remove sexual content involving children - rather than put the frighteners on parents who complain about it.
"The way that it's phrased is that you're going to be in serious trouble, and need to send us large amounts of cash. They put you off," he explained.
"What they should say is 'send us an email, notify us, and we'll sort it out. They don't explain it to be as easy as it should be'."In other words even in places where the DMCA ought to help, it may still end up scaring off the people who should be using it. In this case there is a happy ending but the point remains. The DMCA is great for the experts and the big boys but actually helps to frighten the smaller fry. Fortunately Googling for "sample DMCA takedown request" leads one eventually to a page containing a sample DMCA takedown request (over halfway down) as well as a bunch of other useful advice.