9:32 PM

Last month I posted about Jason Kottke and Jeopardy! The central idea of that post is that individuals who post material on the Internet are at risk of legal action from corporations under copyright law. However, the power of legal action isn't limited to corporations. The DMCA amplifies the power of individuals to take legal action against other individuals for what they post online, as demonstrated by a recent conflict between two LiveJournal users.

I am including links to the individuals and posts involved to demonstrate that this is a concrete example but not to get involved in this particular case. Things have recently settled down after being extremely heated and I do not want to cause things to flare up again. If you are tempted to post comments on the journals of the people involved, please reconsider.

The DMCA (Digital Millenium Copyright Act) is at the heart of this conflict. The DMCA was passed in 1998 and made several changes to copyright law. The relevant portion here is Section 512(c), the "takedown" section.

Section 512(c) makes Internet Service Providers responsible for the actions of their users. If a copyright holder reports to an ISP that one of its users has posted material which infringes on that copyright, the ISP must "act expeditiously" to take down the material. The ISP must also "take reasonable steps" to notify the user. The user then has the right to counter notify the ISP and state that the material is in fact not infringing. The ISP must then report the counter notification to the complainer and restore the material in "not less than 10, nor more than 14, business days" unless the complainer states that it is taking legal action against the user.

LiveJournal is a community oriented blogging tool (and a service provider under the DMCA). One of the features of LiveJournal is that posts can be either public or "locked," so that only LiveJournal users specified by the poster can read the post. Access is controlled on a post by post basis and can be changed after the fact.

On December 2nd, the LiveJournal user Ginmar posted publically about an article in The New York Times. Her original post provoked a strong response, both in comments on her post and in new posts by various other users. Ginmar responded in other posts in her journal as well and then locked the original post.

Another LiveJournal user, Cheshyre, responded by reposting Ginmar's original post, along with her commentary, in her own journal on December 4th.

On December 30th, Ginmar complained to LJ Abuse, LiveJournal's group for handling complaints about users, about Cheshyre reprinting her post. Ginmar may not have thought she was taking legal action when she complained to LiveJournal. In a comment thread in another user's journal, she asserted that Cheshyre was the first to use the DMCA. Nonetheless, LiveJournal responded by informing Cheshyre that they had received a DMCA takedown notification from Ginmar, and that if she did not remove the post by January 3rd, her account would be deactivated.

On January 2nd, Cheshyre edited the post to remove Ginmar's post and declared her intention to file a DMCA counter notification. According to LiveJournal's page on the DMCA, if Cheshyre did file a counter notification, they would inform Ginmar. If Ginmar failed to state that she is taking further legal action, the content would be replaced "after 14 business days."

As of January 24th, that's where things stand. Cheshyre's post is still edited. There has been limited public discussion of further action by either Ginmar or Cheshyre. Ginmar has locked some further public posts that she had made, making the record frustratingly incomplete. It has been about 14 business days since Cheshyre stated she would counter notify. Whether her post will be restored remains to be seen.

I think both Ginmar and Cheshyre would agree that things have gotten out of hand, although neither seems willing to back down. What I am struck by is the role of the DMCA and LiveJournal's implementation of the DMCA in the dispute.

The DMCA has gotten a large corporation involved in what is fundamentally a conflict between two individuals. Furthermore, it has pushed both of them into a legal escalation to resolve the situation. It is not clear that Ginmar thought of her original complaint to LJ Abuse as a legal action, but because of the DMCA, her next step in this conflict would be to contact a lawyer.

Hopefully, you will read this with alarm, for two reasons. Fundamentally, it's stupid for this to have become a legal dispute, but there they are. But also, like Jason Kottke and Jeopardy!, this could happen to you. Blowing up personal conflicts into legal actions is inherent in the DMCA. Copyright law isn't just some abstract thing that affects book publishers. If you post any material on the Internet, it has the potential to affect you, and you don't want to be on the receiving end.

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