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:
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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 correct."
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.