Artificial Intelligence,  English,  Intellectual Property

Copyrighting Copywrongs Caused By Notice+Notice – DMCA Bots

Maybe it is time to fix the AI that is throwing random infringement notices at every IP out there for content that is readily available on Netflix and Amazon (to name a few). Users are being told to take down things they have zero control over (i.e. streaming services). In spite of the 2019 reform in the notice and notice regime, notices keep giving away an extortionary feel, hinting at possible settlements for stuff that everyone is already paying for.

Moreover, these notices give zero possibility to users to respond and provide an immediate good-faith defense. The most honest of users are treated like infringers, are told to inform everyone in their household that they may be sued and that they may have to pay up soon, and no-one is given an iota of chance to respond.

At the same time, the notices are also placing the burden on users to protect their IP addresses against cyber-threats. On a first sight, the notices themselves are hard to distinguish from many other cyber-threats (i.e. phishing attempts) that users receive in 2021, in other words the type of emails that you send to the trash before even having read them, the type of parasitic emails asking you to click on stuff, the type of emails that you blame on spam filter malfunction.

So users are expected to live with a Damocles sword hanging on top of their heads fearing lawsuits from measly and irrelevant hollywood studios. Please bring the lawsuits. We need to open a dialogue on this, not in the academic stratosphere, but in the real world. I want to know how many of these millions of extortionary notices resulted in actual lawsuits.

ISP’s telling you that your “personal information” wasn’t disclosed is misleading. By now you should know that in the world we are living in, your personal information is traded day in day out by data brokers, and it doesn’t take a genius to link your IP to your so called personal information, your whole family’s personal information, the stuff you eat and drink, the stores you go to, the money that you spend, and the food you buy for your pets. Brokerage of “anononymized” data is about to become an even more prosperous commerce thanks to the vaccine passes that are being announced around the world. Soon you can expect Hollywood to have a full picture of consumers health data (biological gender at birth included you guys) before deciding whether or not to attack you with a notice. Soon, everyone’s health data will be so readily accessible to public and private sectors that it will be possible to break down society in ever greater categories of division.

And by the way, ISP blocking exists. The Federal Court of Appeal allowed it recently. One of the criteria for the notice-and-notice regime is that there is no alternative to block the infringement. The minute you perceive ISP blocking of harmful and offensive platforms as an alternative, you have a way out. Therefore, there are less excuses to continue allowing bots to harass Canadian consumers through automated notices. ISP’s should bear all the burden, because they have all the control.

Also, if you receive a notice, try to find the exact time-stamp of the infringement and the exact content that is at issue. It is guaranteed you will find discrepancies between the time the presumed infringement was recorded and your digital footprint.

So, if you get sued, I recommend bringing exculpatory data and adding a third party claim against your ISP (appel en garantie).

Must I mention how much I am looking forward to a lawsuit where data trails are the main exhibits..

Inspired by:

Copyrighting Copywrongs: An Empirical Analysis Of Errors With Automated Dmca Takedown Notices, 37 Santa Clara High Tech. L.J. 119 (2021)