This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome’s beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was protected by the fair use doctrine). Because Network Solutions wasn’t willing to take that small risk, a whole lot of speech was temporarily disappeared.

As the EFF notes, this happens because the notice and takedown process lets copyright holders go after “the weak link” by moving further and further upstream to find a player in the chain who will take down the content, even if it means taking down much more:

Copyright owners reach out to a “weak link,” the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit–even if the service provider knows it will win–is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of “innocent bystander” customers.

The EFF also follows this up with a list of ways that upstream service providers should react to such DMCA notices, and suggests that customers seek out service providers who will follow that course of action. Of course, the better solution would be to fix the DMCA, but that doesn’t seem likely any time soon.

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Originally posted at Rafe’s Radar

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Originally posted at Relevant Results

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And, of course, with such a list, you’d have to expect lawsuits — and they’re starting up. A guy in China sued for $146 million, claiming that his online novel was the inspiration. That suit was quickly dismissed. But fear not, now some restaurant owner is claiming that his unmade screenplay was the real inspiration and has sued James Cameron and Twentieth Century Fox.

Or, perhaps, this is a classical story that’s been told hundreds of times before in various formats.

As with almost every lawsuit like this, it will almost certainly get dismissed quickly. However, this happens all the time with blockbuster books and movies (just look at how many times JK Rowling has been accused of “ripping off” Harry Potter, or Dan Brown accused of “ripping off” The Da Vinci Code). At some point there should be sanctions against these sorts of bogus lawsuits. In many cases, it seems clear that the people suing see it more as a publicity stunt to get press attention for their book or movie or whatever (hence the reason we’re not naming the individuals or their works in this post). In the meantime, though, is anyone taking bets on who’s next to sue?

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This post is part of the IT Innovation series, sponsored by Sun & Intel. Read more at ITInnovation.com.
Of course, the content of this post consists entirely of the thoughts and opinions of the author.

Three years ago, after one of Microsoft’s regular bursts of FUD claiming that Linux violated all sorts of Microsoft patents, then CEO of Sun, Jonathan Schwartz, wrote up a brilliant post knocking Microsoft down a peg by repeating a line we’ve said many times here ourselves: real innovative companies innovate, not litigate. Now, following Apple’s patent offensive against HTC, and unencumbered of corporate responsibilities, Schwartz is sharing a bit more detail on his views over patents (found via Mathew Ingram).

Schwartz tells the story of Steve Jobs calling him and threatening Sun with a patent infringement lawsuit, to which Schwartz quickly warned Jobs that going down that path would lead to a patent nuclear war, as he pointed out how recent Apple products likely infringed on Sun patents. He then tells another story about a visit from Bill Gates, with a similar threat over patents — and a similar response, pointing out that Microsoft clearly copied certain Sun technology. In both cases, the counterweight made the threats go away. This is the whole “nuclear stockpiling” scenario — and, as such, it creates a ton of waste. You have to keep building up those stockpiles just to make sure the other side is too scared to sue you.

But the key point is made after this, where Schwartz again makes a statement quite similar to ones we’ve made when a big tech company suddenly goes on the patent offensive. It’s a canary-in-the-coalmine sign that something is wrong:

For a technology company, going on offense with software patents seems like an act of desperation, relying on the courts instead of the marketplace.

He also highlights how these lawsuits can backfire in a big, big way:

Having watched this movie play out many times, suing a competitor typically makes them more relevant, not less. Developers I know aren’t getting less interested in Google’s Android platform, they’re getting more interested — Apple’s actions are enhancing that interest.

Indeed. It’s a point that still seems missed by so many when discussing these patent lawsuits.

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So it should come as little (i.e., no) surprise that in the few months since the Hadopi law has technically been in effect in France, reports have found an increase in unauthorized file trading, along with a notable shift from BitTorrent to other, less trackable, solutions.

So what’s next? Suing doesn’t work. Kicking people off the internet doesn’t work. Can we hope that maybe next on the list is actually putting in place a good business model?

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This is a really good way of thinking about things — and highlights an issue that goes way beyond just music. It’s why so many corporate blogs suck. Because they just talk about their own company, and appear to be propaganda. But it also highlights another important point: the value of passed links. We’ve noted in the past that when people pass around links (or music or books or whatever) it’s the person who’s doing the passing whose reputation is at stake. And, because of that, we tend to trust people passing links to others much more than people just promoting their own stuff. And this doesn’t need to be reciprocal. Steve notes that he just blogs about music he likes — and sometimes he hears from the musicians saying it resulted in a spike in earnings somehow, and that’s great.

To some extent, this also explains some of our position on things like ad blockers. Sites telling visitors who use ad blockers that they’re not welcome are shoving aside visitors who very well may pass on a link that has tremendous value. The viewpoint held by sites like that seems to undervalue passed links, believing the only true value is in the immediate and direct ad impression. But when you focus on just letting people experience whatever cool stuff you’re creating, some of them will pass it on to others, and that “vote” in your favor may be incredibly valuable.

So, while Steve focuses on the point of helping others make more money, if you’re doing cool stuff, it’s worth remembering that a lot of that stuff comes back around (in even more valuable ways). One of the problems we see with so many anti-consumer businesses is that they feel the need to directly monetize every user/visitor/listener, rather than recognizing that the mislabeled “freeloaders” can pay it back in ways that greatly outweigh any sort of direct payment opportunity.

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