All you copyright folks know you have to plunk down your $350 to file a federal case , and then move for a TRO (temporary restraining order) to overcome the re-posting of infringing material on the internet..Not inexpensive, but if you don't assert your claims by filing the appropriate legal action, then you might have to pay the other guys legal fees ...Apparently the NFL cheaped out as a law professor showed how the big guys were swinging the take down notice sword....read the gory details
http://arstechnica.com/news.ars/post/20070320-nfl-fumbles-dmca-takedown-
Of course, one expects legal counsel for the NFL to be able to handle the procedure and expense of a proper take-down notice. But what if Joe or Jane average want to avail themselves of their copyrights in the on-line marketplace? Does the DMCA help or hinder the average author, artist or entrepreneur?
In a case venued in the Northern District, between a well known Bay area poet, and a notorious crank hobbiest pornographer, the DMCA seems to do little except protect the caprices of the ISP. GoDaddy (the ISP used by the disturbed purveyor of free, kiddie filtered porn) states in their policy that if you give them notice you've filed a legal action, then your $350 ought to halt the re-posting of material that you've already proven you have paid your $45 to register in the US Copyright Office. So even being out of pocket in excess of $390, not counting service costs on the infringer, one STILL cannot get the infringing material to stay off the internet...GoDaddy seems to write its policy as it goes along, and now seems to have decided that despite a policy that says the pendancy of a legal action is sufficient to overcome an opposition to a takedown notice, now apparently has opined a bona fide registered copyright owner must wait for the outcome of a TRO. Apparently this is true when the opposition to takedown is not a "defense" as recognized as "fair use" but consists of nothing more than some incoherent expletives via email coupled with a footer that advertises the infringer as a purveyor of free kiddie filtered porn. Maybe GoDaddy needs to keep this sort of client's posting up for business reasons, and can risk perverting their own written policy as regards the lowly legitimate registered copyright owners. Is the ISP now outside the safe haven created by the DMCA for ISPs because they are not applying their written policy? Does the Plaintiff now have a cause of action against the ISP for wrongfully failing to act on a take-down notice that was not effectively "opposed"?
In the so-called "fair use" defense asserted in the opposition to the NFL take-down, The remedy against the NFL - obtaining legal fees for opposing a defensible take-down, may be recoverable as the NFL is not short on resources. However, as between smaller disputants, the cards seemed stacked against the copyright owner having equal standing against the interloper. How can the artists rights, as created by the US Constitution, be meaningfully asserted? Do we need a small claims "do it yourself" TRO procedure set up for handling the confusion caused by capricious ISPs such as Go-Daddy?
For the small copyright owner who is playing by the rules it seems one still gets only the amount of due process that one can afford. And as a taxpayer, one shudders to think what the effect this process will have on the backlog on the federal courts.
