A summarized version of my reply to Brad's post.

[insomnia]

"I care about LiveJournal a lot .... The reason I sold LiveJournal, to retell an old story, is because I was too stressed doing LiveJournal alone (it's a ton of work), and I was on the verge of shutting it all down. I sold it to the least evil company I could find..."

Just like you did with FreeVote.com, and almost did with LiveJournal, back when it

Comments

[insomnia]

My biggest concern regarding paid communities is what happens once you get large clients -- such as Warner, for instance -- who have a portfolio of such sites. How will they interact in a situation where there are other "competeing" communities with large audiences? Will they promote themselves inside those communities? Will they have communities shut down for copyright violations, using the DMCA? How will LJ react in such cases, knowing that significant money rests on their actions?

Strictly speaking, the process mentioned in the DMCA technically is supposed to allow for those hosting potential violations of copyright to challenge claims of such copyright companies, claiming "free use" or some other valid reason for the violation. In reality, however, LJ's abuse department is overwhelmed, with little or no knowledge of the DMCA and how to respond to such requests in a way to protect people's rights. Instead, they simply default back to their right to suspend at will, with no warning.

So, yeah... adding commercial communities is indeed a significant threat to people who do creative projects that involve copyright and trademarks. A few harsh incidents could force those people to have to flee LJ to other sites in order to have the freedom to do what they do.

[mcfnord]

LJ's abuse department has a deep understanding of the DMCA insofar as it compels them to behave in specific ways to maintain their safe harbor status.

My read adds up to a nearly opposite conclusion. This will create commercial alliances.

I think you see the program as a platform for what sponsors hope to speak. I bet it's more like a platform where we talk and they moderate. Making formal business relationships with 6A is actually more likely to promote good citizenship and good business here. I strongly doubt 6A would welcome a flood of DMCA threats from one of their customers. And once you're not a sponsored community customer anymore, the LJ advertisement mechanism doesn't facilitate your media agenda no mo.

so i think sponsor participation in the community and meager profit from it will incentivize them to play nice rather than hostile, because no single one amounts to much here. Warner doesn't want to battle Brad here, on Brad's platform. This here is a vending tool, and it's efficient and rather simple. Want to vend here? Then you'll play nicey, not meanie. You'll moderate a community of adsense and keyword traffic to your little film or whatever.

[insomnia]

"LJ's abuse department has a deep understanding of the DMCA insofar as it compels them to behave in specific ways to maintain their safe harbor status."

i.e. They know how to suspend people at will if there is content that may be seen as potentially in violation of the DMCA.

I know firsthand from overseeing LJ's abuse dept. in the past just how understaffed and undertrained they tend to be, so I speak from some experience here as to what their current staffing capabilities are. (i.e. They are even more understaffed than they used to be, when there were far fewer users to deal with.) They don't have the time, financial incentive, or infrastructure in place to deal with DMCA complaints in such a way as to guarantee the rights of users to dispute them. Compliance with the DMCA requires that takedowns need to occur rapidly after notification... usually within about 72 hrs. In this sense, the DMCA's suggested guarantees to the users are meaningless.

"Making formal business relationships with 6A is actually more likely to promote good citizenship and good business here."

Increased visibility of LJ communities to corporate entities just makes those communities more of a visible target. You seem to think that the people in marketing and their needs are somehow dominant over the people in legal and their goal of defending their intellectual property, but I can tell you from experience that it usually works the other way around.

"I strongly doubt 6A would welcome a flood of DMCA threats from one of their customers."

The management of 6A has literally no say over such matters, if they want to comply with the DMCA in order to avoid liability. For this reason, all DMCA requests will be complied with, usually in the most expeditious manner. (Suspension w/ no warning.)

"i think sponsor participation in the community and meager profit from it will incentivize them to play nice rather than hostile"

That's a marketing decision, and not a legal one, and as I mentioned before, most marketing departments are subject to the whims of legal, and not the other way around. Most legal departments feel that they are legally constrained to enforce their copyright whenever they hear of an encroachment, no matter what the business rationale, for fear that not enforcing it might hurt their rights.

Also, I would argue that you are looking at sponsored communities as a series of relatively unprofitable shortterm deals, done on an individual basis by independent companies. This, frankly, doesn't make much sense. Warner makes most of its decisions by testing the waters to see whether something works for them, then going in big, with multiple products. Most of their creative products are not "one off" deals, but longterm franchises, such as bands or sequelized movies. They probably represent over a thousand band releases per year, compared to maybe a few dozen film releases.

In this context, it makes business sense to view communities as a potentially more profitable longterm investment, where increased value is derived by expanding the community audience as much as they can, and by using the communities as a tool to build up their marketing / emailing list, etc. This increases the risks both to independent LJ communities and to their users.

[mcfnord]

It is not the role of 6A as a service provider to question whether a DMCA violation has occured. The DMCA is a process wherein the service provider behaves in a specific way to be released from liability. It is not the job of the service provider to adjudicate DMCA disputes. People who dispute DMCA complaints have legal remedy that does not involve 6A.

Since when does DMCA involve a "warning"?

I regret that we're too far apart to continue usefully.

[insomnia]

"Since when does DMCA involve a "warning"?"

If you read the terms of the DMCA, you'll see that it requires the service provider to let the subscriber know what is being taken down, and gives them a chance to refute the takedown. If they do, then the service provider is supposed to restore the content, allowing for legal action to be taken directly against the subscriber by the party that sent the takedown notice.

If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2) of the DMCA] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network.

LJ simply does not comply in full with this part of the DMCA.

[insomnia]

What I / LJ's abuse team used to do was to give the users a very brief amount of time to remove all content listed as being in violation of the DMCA, if possible, so that the takedown wouldn't have to apply to the entire journal, but just the violating content itself.

This was back when DMCA takedown notices were less common than today, however. LJ doesn't do this today. Instead, entire journals are taken down, sometimes for a minor or otherwise questionable copyright violation that may or may not be originated from the person posting it.

[insomnia]

Just to clarify why this matters, I just visited your journal and found this there:



Now, which theoretical would you prefer? That you get notified from LJ and get told that Disney has it in for the userpic you have in your journal, and you have maybe a day to remove it... or that everything you've ever written in your journal since Dec. 2002 be permanently taken down without notice, without even any kind of procedure to have it restored or way to back it up?

Those are often the realities of such policies, unfortunately.

[mcfnord]

I don't buy the permanently part.

[insomnia]

Anything other than permanently taking down the content would be in violation of the DMCA and expose the company to liability.

If they didn't unsuspend all the accounts that people lost for having userpics that contained breastfeeding, why would they restore accounts for DMCA violations, where actual legal liability exists?

Sure, someone could start another account, but that doesn't mean that they wouldn't lose access to potentially thousands of posts with no warning.

[mcfnord]

Are you saying people should be given more time to take down content that is the subject of a legitimate DMCA request?

They don't have to unsuspend the breastfeeding photo accounts. Are you saying these people weren't given enough notice to comply? How much notice should they have?

[insomnia]

Given more time to comply with the DMCA? No. The DMCA is what it is, and it orders internet hosts to take down content in an "expeditious" manner, which is legally interpreted as allowing more time than "immediate" but not undue delay.

Basically, this means that you need to allow a reasonable amount of time for the notification to enter into a queue and get assistance from someone, who then should have the time to quickly review the substance of the allegations, determine whether a violation actually took place, determine whether the takedown notice was formatted in an acceptable manner -- there are certain requirements for the creator of a DMCA takedown notice to clearly specify the location of all the content in question, and what constitutes a properly formatted notice.

There is nothing in the DMCA requirements that rules out solititing rapid action, information, or clarification from the person who posted the content, so long as the takedown itself is handled expeditiously. For me, this generally meant 24-48 hours, and never in excess of 72 hours.

Note that there are certain things you can do as an owner of a site to add a bit of "wiggle room" into the amount of time that is generally considered acceptable to enforcing a DMCA takedown, such as require that requests be either mailed or sent into a general support queue where there may be a reasonable assumption of some delay before the issue gets looked into, and making it clear that delays may occur if the requestor does not provide direct links to both the original copywritten material and to the specific abuse of copyright.

Unfortunately, all too often the people who create takedown notices are rather vague, in some cases simply saying that the content is on user.livejournal.com . This, of course, makes it hard to find something specific which may be buried in their journal that is months old.

And no, 6A doesn't have to unsuspend breastfeeding accounts, but my point was simply that if they didn't unsuspend them, what makes you think they'd unsuspend a journal taken down for a DMCA violation?

The basic truth is though, LJ's abuse department is typically overwhelmed. It was overwhelmed years back, to the point that some volunteers were working 30-40 hour weeks. (That's why both of the Abuse Dept. managers I oversaw during my time with LJ were unemployed -- people with actual jobs couldn't keep up with it all, or wouldn't know all the rules and how to properly interpret them.)

Towards the end of my time in LJ, Brad kinda screwed the pooch with a lot of the volunteers in support/abuse, many of whom disliked his micromanagement and overruling of some rather legitimate decisions made by them. In some cases, troublemakers who seriously abused people on LJ would simply end-run around the support/abuse staff and contact Brad directly with sob stories about how they were mistreated. Brad, rather than referring them back to a review panel that I had set up, simply overturned decisions without even getting all the facts, complaining about the mere fact that some people were complaining to him, basically. Nevermind that LJ was growing exponentially, so, as a result, there were many more complaints coming in.

His way of dealing with increasing complaints was essentially to change the rules on people making it much harder to complain about abuse, while being more prone to resolve problems by suspending, rather than trying to find ways to avoid having to suspend people. Why? Because it was easier to staff.

Nowadays, LJ's abuse team wouldn't be able to offer the quality of service that we did back then because they're more swamped than ever. If you wait long enough, they may send you a form letter though.

[mcfnord]

Am I correct in believing that if someone would take down their titty pic, or take down DMCA content subject to notification, they get their LJ back?

If LJAbuse experiences vetoes or errors of judgement, that sounds unremarkable. Certainly there are ways I can lose my LiveJournal space, especially by exposing LiveJournal.com to risk or loss. I also understand the need for efficiency and scalability in governance.

[insomnia]

In the case of the breast issue, where the people were warned ahead of time about it, yes, they could've done so. I disagree with the breast feeding issue, and would've considered it a misinterpretation of the previous TOS definition of indecency, which has a legal definition which is based on acceptable local standards. As you might suspect, breast feeding is certainly acceptable in California, where 6A is located.

In the case of taking down DMCA content, it is likely that there would be no advanced notice. See this incident for a recent example of how this would work in action. Note that there was no warning on the suspension, and that 6A/LJ doesn't mention her DMCA right to appeal the takedown saying that her account "was suspended, and it will not be reinstated."

Like I said, there's really no clear system in place to protect people's content as much as possible, which used to be my mantra to the Abuse team, or even inform users of their rights under the DMCA. No such right exists, because LJ reserves the right to suspend at will under their TOS.

If you look at this in the context where about a third of all DMCA notices are flawed or invalid, it's hardly a case of LJ putting their users first. More can be done to protect its users in such cases, and I think the people who use LJ should want to have some basic protections in place before they invite commercial entities in to LJ to such an extent.