Tuesday, June 7, 2011
Taking matters into your own hands can backfire, so don’t play the fool when enforcing your copyrights. In the Wild West world of the Internet, everything isn’t necessarily as cut-and-dried as it seems.
Lessons To Be Learned
Arena's situation illustrates several lessons, both positive and negative. Although there were some things that Arena did correctly, other actions that should have been taken were not, and some actions were ill-advised.
For starters, Arena's use of a DMCA takedown notice was appropriate and effective to quickly prevent the further dissemination of illegal copies of his book via Scribd.com. Although it's important to remember that liability may attach in instances where the use of DMCA takedown notices is abused (at least one court held that it's necessary to perform a fair-use analysis before sending a DMCA takedown notice), the likelihood of such liability is greatly reduced where the entire work has been illegally posted for redistribution, as in Arena's case. And since online providers like Scribd.com attempt to avoid liability for copyright infringement their users commit, they're quick to take steps to ensure that they can take advantage of the safe harbor—immunity from liability for copyright infringement—by complying with the DMCA takedown notice. As it turns out, Arena found illegal copies of his book on other sites, and he sent a dozen or more DMCA takedown notices, all with similar results.
Unfortunately, Arena also missed an opportunity when dealing with Scribd.com and the various other sites that posted illegal copies of his book. Since he knew there were 115 downloads of the illegal copy of his book from Scribd.com, he also could have requested whatever log information Scribd.com had relating to the illegal downloads. Even if Scribd.com wasn't willing to provide the log information to Arena directly—many online providers won't turn over information that will identify their users without receiving a subpoena—Arena could have placed Scribd.com on notice that the log information was going to be evidence, and insisted that Scribd.com preserve that information as evidence pending receipt of a subpoena. The reason for making the request, or for notifying the provider to preserve the information, is because most providers only maintain log information for a relatively short period of time—sometimes as little as 30 days—and once that information has been deleted, there's no way to track down the people who downloaded illegal copies.
Most people don't know that websites typically generate log information, or if they're aware of the existence of the information, they underestimate its value. Indeed, many people misapprehend the amount of privacy that exists on the Internet,and don't realize that the same technology that facilitates the sending and receiving of information over the Internet is also capable of being used to identify users interacting with other websites. Log information often can be used to identify who uploaded the illegal copy of the book and who downloaded an illegal copy.
Even if Arena had no interest in pursuing the downloaders, the log information may nonetheless have been important. Looking beyond the Arena/Hillsgrove situation, the log information may also help identify the source of the infringement. Without the log information, the repetitive sending of DMCA takedown notices can seem like a bad game of "Whac-A-Mole." While the takedown notices may cause websites to take down the infringing material, they do little to help pursue the infringer who posted the content, and hopefully, bring a halt to that person's infringing conduct. It's only by pursuing the people responsible for the infringement—which often necessitates the use of log information—that it may be possible to stop the infringement at its source.
The log information might have also helped determine the truthfulness or falsity of Hillsgrove's denials. Since the purported account holder's name was visible, it may have been logical to assume that Hillsgrove was responsible for posting the infringing copy of Arena's book because it appeared on her account on Scribd.com. However, such an assumption may prove untenable in the face of Hillsgrove's denials and explanation that her Facebook account (which was then used to access her Scribd.com account) was hacked. In situations such as this, log information showing precisely which IP address was used to post the infringing work can make or break a case. For instance, if the IP address used to post the book points to Hillsgrove's house, such forensic information can be used to prove the lack of veracity of Hillsgrove's denials and protestations. On the other hand, if the IP address used to post the book points somewhere else, it may help establish Hillsgrove's innocence.
Page 3 of 4