Ethan Ackerman schools us on DMCA and ISPs' obligations

Griefer Madness continues! Responding to BoingBoing posts (1, 2) about serial internet bully Michael Crook — and coverage on Wired's 27BStroke6 security blog — Washington, DC attorney and tech law specialist Ethan Ackerman offers legal insight. He reminds us that the Digital Millenium Copyright Act (DMCA), not Crook, is the real bad guy here, and points out that ISPs and photo or video-hosting services have more options when sent a DMCA notice here than they may realize:

Regarding your coverage of the so-richly-deserved EFF suit filed against
Michael Crook on 27b/6 & boingboing, you both repeat the assertion
that an ISP has to (BoingBoing) "take immediate action, even before
proof of copyright ownership was examined" or (27b/6) "act immediately
to have an image removed, even before they check if the claim is

An ISP has to act "expeditiously" under the Act, and the Act was
totally designed to work just like you describe, BUT this doesn't
prevent the ISP from notifying her client/subscriber BEFORE pulling
the content . This might seem like nitpicking, but it can be vital
because it can let lawyers get involved to enjoin the takedown, all
without risking the ISP safe harbor.

Say Laughing Squid gets a DMCA notice from the DoJ in the email Monday
morning over Xeni's scoop publication of the "Pentagon 2" papers –
critical stuff for free press and democracy – if they notify Xeni,
saying they're pulling at 5pm, she can call Jason Schultz, who can get
an injunction at the courthouse that very afternoon telling Laughing
Squid to ignore the DMCA notice. Speech isn't censored, the press
isn't restrained, all's well…

The point of your statements, that the takedown process is "shoot
first, ask ?s later" is totally spot-on, and a major flaw of the Act,
but there are still other meaningful checks within the legal system to
ensure fairness.

The more ISPs know that notice CAN happen first, even though it only
HAS to happen after pulling, the better off the internet is. Better
to spread the word that the takedown process isn't a lockstep,
uninterruptible process, even if it was lobbyist-designed to be one.
Then the Michael Crooks of the world might be less likely to abuse it.

Previously on BoingBoing:

* Michael Crook sends bogus DMCA takedown notice to BoingBoing
* EFF Sues Michael Crook for Bogus DMCA Claims