DMCACompliance

Soylent News Policy In Compliance With The Digital Millenium Copyright Act (DMCA)

Preface

As a corporation established in the United States, Soylent News PBC is subject to US law. This includes the DMCA, whose provisions govern how we must handle content posted publicly by our users that is known to be, or suspected to be, in violation of a US copyright held by another entity.

In order to take advantage of what is called the 'Safe Harbor' provisions of the DMCA, which limit monetary damages to us in case one of our users posts copyrighted material, we have followed the provisions of that law and registered the required information with the copyright office. A copy of that registration and the contact information it contains (our 'designated DMCA Agent') may be found on the US Copyright Office site here (pdf).

The next section describes how we will handle such cases. For a deeper understanding of why we have found it necessary to adopt these policies, please read the section below titled #Rationale.

User Policy

There are two slightly different situations where action is required by the DMCA in regards to possible copyright violations which come to our attention.

1. We receive a formal DMCA Notice

In this case our actions are almost completely dictated by the law itself.

If you are a registered user
1. We will try to contact you through the email address you are registered under and ask you to remove the material
2. If this is not done within 24 hours of when we receive the DMCA notice, we will remove the material ourselves, using any expedient means, which may include a direct database edit, resetting the password on your account so we can edit it and sending you a password reset email, or other means as required.
3. If appropriate, or needed as a place holder, the offending material will be replaced with a notice indicating that some material has been removed as a possible copyright violation, due to a formal DMCA request.
If you are not a registered user
1. We will remove the material as soon as is practically possible, and leave in its place a note indicating material has been removed as a possible copyright violation, due to a formal DMCA request.
In the event of a dispute, the user is required by law to follow the formal DMCA provisions and file a DMCA compliant 'Counter Notification'
The form of a counter notification is described below, as directly quoted from the law.

- (3) CONTENTS OF COUNTER NOTIFICATION.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:
  - (A) A physical or electronic signature of the subscriber.
  - (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
  - (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
  - (D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

In the event a properly written counter notification is received, staff will evaluate it on its merits and decide whether to restore the material, (no sooner than 10 days nor later than 14 days as required by law) and send a copy to the entity which filed the DMCA complaint (as required by law) OR, to not restore it.
Please understand that the next step in the event of a restoration is likely a legal case brought by the DMCA filer. Due to our extremely limited means, we are likely to take a very cautious approach at such times, and are specifically protected in this by the safe harbor provisions of the DMCA itself.

2. A possible copyright violation is brought to our attention by any other means

In this case we have somewhat more flexibility. We are not required to actively seek knowledge of copyright violations by our users, and do not have any practical technical means to do so. However, the law does require that if we become aware of facts or circumstances from which infringing activity is apparent we must act expeditiously to remove, or disable access to, the material.

In this case:

If you are a registered user
1. We will try to contact you through the email address you are registered under and ask you to remove the material, establish that it is a clear 'fair use' of the material, that it is in fact not in copyright, or that you hold the copyright.
2. No more than 7 days will be allowed for a reply.
3. If no reply is received within several days, we MAY but are not required to, try to contact you through other means such as a comment left on your journal or in the main site comments.
4. After receipt of your reply, or no later than 7 days if attempts to contact you or receive a reply have been unsuccessful, staff will evaluate the likelihood that the material is infringing, and either decide it is likely not, or remove the material ourselves, using any expedient means, which may include a direct database edit, resetting the password on your account so we can edit it and sending you a password reset email, or by other means as required.
5. If appropriate, or needed as a place holder, the offending material will be replaced with a notice indicating that some material has been removed as a possible copyright violation, due to staff concerns.

If you are not a registered user
1. Staff will do its best to evaluate whether the material is likely to be infringing, based upon available information, within 72 hours.
2. If the material is considered likely infringing, it will be removed using any expedient means,
3. If appropriate, or needed as a place holder, the offending material will be replaced with a notice indicating that some material has been removed as a possible copyright violation, due to staff concerns.

In exceptional cases, flagrant repeated violations may lead to termination of a users account, at the discretion of staff.

Some Things Our Users Need To Be Aware Of

It is not always obvious, but just about everything submitted to our site (with the exception of some user information, and articles submitted but not yet edited) is completely public and can be found by the searches of copyright holders looking to enforce their copyrights. So please be careful. If in doubt, leave it out.
We are not required by law to actively seek out copyright enfringement. We do not do so, and have no practical technical means to do so. However if we become aware of a possible copyright infringement, we are required by law - with or without an actual formal DMCA notice - to investigate it, in order to maintain our safe harbor status.
It is very important that we can contact you should there be a problem, or potential problem. In the event of an actual DMCA notice we have a relatively short time to respond (read the time limits above). Please make sure the email address you are registered under is current, and is actually monitored. There may well be edge cases when some input from you would be invaluable, but we cannot hear it if we cannot contact you within the time frames mentioned above.
In view of our circumstances, we must take a very straightforward reading of the law, and cannot afford to dispute edge cases. This is quite likely to be unfair at times. Please understand our position. The law is rather heavily weighted toward the copyright holders. There is nothing we can do about that at present.

Rationale

We (Soylent News, PBC) are an entirely volunteer run operation with no paid staff. Members of our community volunteer to edit articles and perform other duties. Our only expenses are those needed to provide servers and access and pay minimal taxes and bookeeping expenses related to our status as a PBC. These, in total, amount to only a few thousand dollars per year.

Our only source of income is voluntary contributions from our users. While they have been generous, their numbers are small.

In view of this, it is clear there is no practical way for us to fund the level of legal expenses required for legal challenges related to copyright issues, or any other serious legal challenges.

Our primary operation is as a user forum where our community can submit articles and freely comment on them. A particular feature of our system, modified from one created in the 1990s by another entity, is that we do not delete or otherwise modify user submitted comments, instead using a moderation system that allows users to assign numeric scores to submitted comments. This was adopted to allow a high level of free speech while still allowing users to be selective in the quality of comments they read. Undesirable comments are normally simply down-rated to a level where few readers will actually see it.

Due to this somewhat unusual system, there are no easily accessible means to completely remove or delete user submitted material, in the hands of staff. Users have the ability to edit and remove material in their journals, but have no ability to modify their own public comments or articles after submisssion. The only option available to staff is a direct, command line sql database edit, which requires root level privileges only available to a few staff tasked with system maintenance. The system as originated was designed specifically to NOT encourage this type of editing.

The DMCA puts us in an awkward position because of the situation described above. Prior to the passage of the DMCA, we relied for our protection on the idea, by law and common usage going back centuries, if not millenia, that entities which provide services for all, freely and indiscriminately, are 'common carriers' and cannot be held responsible for individual acts of the people they serve. In plain language, this means that if someone robs you and escapes in a Ford automobile, the manufacturer or seller of that automobile cannot be held legally responsible for the actions of the robber.

The DMCA violates this long held principle for specific uses. It has been strongly criticised for this. However, despite the controversy surrounding it, it is at present the law of the land in the United States and since we are incorporated in the United States we must comply with it.

In view of this, several staff have gone through the law to determine exactly how it affected us and what our responsibilities are. The approach taken is that, again in view of our limited means, we must strive for the most straighforward, plain interpretation of what is written and avoid attempting to second guess possible future legal challeges to the law, or interpreting language in ways that might be more favorable to our circumstances but require 'alternate' interpretations other than the most obvious one.

The most signficant item coming out of our read of the law is that there is what is called a 'safe harbor' provision in it. This provision very specfically exempts entities who follow some strict requirements in the law from legal responsibility for the actions of their users, including:

Monetary damages resulting from copyright violations
Monetary relief includes 'damages, costs, attorneys fees, and any other form of monetary payment'
Damages that might result from a disputed or mistaken interpretation of whether material is infringing
Various other situations where damages might otherwise result

This 'safe harbor' provision was determined to be very desirable for us to qualify for, in view of our circumstances.

To qualify, there are a number of conditions that must be met, notably including (with some others):

A *Designated Agent* to receive DMCA notices must be created
Specific information about that agent must be filed with the US Copyright Office which makes it publicly available
We must act 'expeditiously' to remove suspected infringing material upon receipt of a DMCA notice
The user must be notified and has the opportunity to file a counter notice. Upon receipt we can restore the material in not less than 10 days nor more than 14 days after receipt of the notice
If we receive a counter notice, we must provide a copy to the entitity who filed the DMCA notice
Both DMCA notices and counter notices must follow a specific format outlined in the DMCA
We are not held responsible for any infringing materials our users submit we are unaware of, but
If we are made aware, by any means, of such materials, or suspected materials, even in the absence of a formal notice, we must act 'expeditiously' to remove them.
We are not held responsible if we wrongly determine materials are infringing
A copyright owner may obtain a subpoena asking us to identify to them an 'alleged infringer' for purposes (only) of 'protecting rights under' the DMCA. (Which we must comply with)
We must have a DMCA policy, and must 'inform' 'subscribers and account holders' of it, which must
- Provide for the termination of users who are repeat offenders.
- Be in accordance with 'standard technical means' used by copyright holders provided they 'do not impose substantial costs' on us.

Most of the provisions of the law are very clear and precise.

There are, however, a few areas somewhat open to interpretation, or whose meaning is somewhat unclear. Our interpretation of those items is covered below.

The last bullet point above referring to 'standard technical means' we are interpreting as the use of automated systems tied to copyright holders systems, such as used by very large service providers such as Google to automate the takedown process, to save staff time. Our system is so small and the expected frequency of violations so low that such a system would be an absurdity, and well beyond our technical and financial means in any case.

The necessity of terminating a users account access is also expected to be extremely low and will be dealt with on a case by case basis, the final decision will be made by current staff.

Our DMCA policy is this page on our public wiki.

The interpretation of the word 'expeditiously' in reference to how soon we remove alleged infringing materials is somehwat hazy. The courts have not yet clarified this, so we are relying on the analysis provided on this Wikipedia page.

Since Wikipedia pages may change from time to time, the relevant paragraph is quoted here:

Meaning of "expeditious"
The law provides for “expeditious” action. The meaning of "expeditious" in the context of this law has not yet been determined by the courts. Black's Law Dictionary defines "expeditious" as "performed with, or acting with, expedition; quick; speedy." In the common law, the term "expeditious" has been interpreted according to the circumstances, allowing more time than "immediate" but not undue delay. Some suggest that the most prudent courses are to comply "immediately" or to seek immediate legal advice from qualified legal counsel. In the commercial online world, taking more than 24 hours may well be viewed as undue delay. However, when legal advice is factored into the equation it is reasonable to give counsel time to review all the facts, verify the necessary elements of the notice and conduct minimal research to ascertain the current state of the law. This may reasonably occur when the material posted appears likely to be covered by a fair use, for fair use is not copyright infringement. So, in some situations it may be reasonable to determine that "expeditious" would take more than 24 hours, and if the ISP was a small not-for-profit provider, or a server run by volunteers, it may not have the resources to obtain a legal opinion with the same speed that a large multinational corporation may have resources at its disposal to comply immediately. There may not even be a person immediately available who is qualified to determine if the notice complies with the standards set forth in the act. Perhaps a reasonable court would take these factors into consideration. The courts in the United States have yet to rule on these issues.
For a commercially run on-line provider taking action within the hour to tell a customer that a takedown notice has been received and informing them that they must immediately remove the content and confirm removal, giving them six to twelve hours to comply; and otherwise informing them that the content will be taken down or their Internet connection terminated, may be considered reasonable. Some courts may find this to be too great a burden on an ISP if it receives a large number of communications at the same time or has limited resources to review § 512 notices for substantial compliance. It may also depend on how the notice is sent. If the notice is sent via regular mail or via fax, there may be a lag between the sending of the notice and its reception by those who are able to act upon it. If the notification is received by a mail delivery on a Saturday when the ISPs offices are closed and not acted upon until Monday, that may be considered reasonable.

Our interpretation of this is somewhat affected by our specific circumstances, which we believe might be reasonably taken into account. The most significant factor affecting this is that our site is a leisure time activity, and in many cases users may only be able to be contacted by us on weekends, or whenever their leisure time brings them to a condition that they read email or internal messages sent to them.

In the case of recieving an actual DMCA notice, the safest time period seems to be somewhere around 24 hours. For purposes of our policy we have therefore used that. It is very ikely however that it could take us longer to establish contact.

In the instances where no DMCA notice has been received we have used a somewhat longer time period, which takes into account something closer to the time frames we actually expect that will be required to contact a user.

In the case of anonymous users, we really have no means at all to contact them, and do not store any information that could even identify them. In that case it is most practical to simply remove suspected material as soon as discovered and our resources permit.

Reference Materials

Direct link to a pdf of the DMCA - The safe harbor provisions are in TITLE II—ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION (skip down page)
Link to US Copyright Office - List of registered DMCA Agents
DMCA - General article on DMCA at Wikipedia
Expeditious - Link to Wikipedia article on the Safe Harbor provisions and interpretation of 'expeditious'.