Rich Fiscus
5 May 2008 12:07
Last week Google received a DMCA Takedown Notice in regard to a relatively obscure project called coreavc-for-linux. The notice, which can be read in its entirety on the Chilling Effects website, claims that the the project's Google Code page included a download containing code owned by CoreCodec, Inc., developers of the CoreAVC MPEG-4 decoder.
A DMCA Takedown Notice is the official mechanism put in place by the Digital Millenium Copyright Act (DMCA) for copyright owners to deal with infringement issues without making hosting companies liable for everything published on their servers. They've most famously been used to have copyrighted video removed from sites like YouTube, although they're routinely issued for everything from printed works to audio files.
What makes this particular case noteworthy is the that the notice specifically states "The Site hosts and/or contains one or more links to CoreAVC, which contains CoreCodec's copyrighted Software." However, comments posted over the weekend by CoreCodec founder Dan Marlin appear to cast some doubt, or at least confusion, over the infringement claim.
In a discussion of the issue on the CoreCodec forum Mr. Marlin stated that "this is not about copyright (even thought the DMCA deals with that), this is mostly about reverse engineering without permission under the DMCA."
This raises some questions about the validity of the Takedown Notice. While the DMCA does address reverse engineering of certain code, which has been most famously (or infamously) demonstrated by the legal history of the DeCSS code used to circumvent the CSS encryption found on most commercial DVDs, the Takedown Notice specifically claims that code owned by CoreCodec was the issue, and not the reverse engineering process itself as his statement seemed to suggest.
Mr. Marlin today posted an update to the situation saying "The DMCA removal request and the project reinstatement was sent to Google yesterday 5/4. I'd like to publically apologize to Alan for the disconnect between him and us as well as the disruption to the project as there was no ill will intended and we were already working on a resolution with him before this went public." Since the time I started working on the story he's also made another post stating that in fact the reverse engineering in question does appear to be legal under the DMCA.
While I'm not a lawyer or legal expert I've read a great deal of expert analysis on the DMCA and copyright law and it seems quite clear that aside from the so-called Safe Harbor provision that defines the process for Takedown Notices very little of it is actually copyright law at all. Rather, the majority of it deals with trade law, violations of which aren't covered by the takedown process.
At best the events of the past few days highlight obvious problems for laymen when it comes to interpreting the DMCA. At the same time, it's the incument on the copyright owner to understand their rights before beginning the takedown process. A simple web search should be enough to cast significant doubt on CoreCodec's original claim. Try it yourself if you don't believe me.
Problems with the DMCA don't relieve business owners of their responsibility to do 5 minutes of research before taking legal action. While I applaud the management of CoreCodec for apparently changing their policies and apologizing immediately when they were told by legal counsel that they were the wrong, I can't help but ask why they didn't know enough to avoid the issue in the first place.
As someone whose living is dependent on intellectual property I find it difficult to imagine how they wouldn't.