Newsgroups: alt.religion.scientology
Subject: Notification/Counternotification/Subpoena Provisions of DMCA
From: Rob_Clark@justicemail.com (Rob Clark)
Date: Tue, 08 Jun 1999 13:40:39 GMT

[this is reworked from an email to safe--which preceded the subpoena. i zap safe's comments quoted from ars and rework the first half, but leave the specifically AT&T - related stuff near the end so the style is inconsistent.]

http://henry.ugl.lib.umich.edu/libhome/copyright/dmca.html is a good general info site and http://www.loc.gov/copyright/legislation/hr2281.pdf has the actual entirety of the law -- in GODDAMN pdf format

if subpoenaed by the nut-cult and your material is yanked, you need to invoke the counternotification procedure of the so-called "Digital Millenium Copyright Act."

specifically, that enumerated in 17 USC section 512, the "Online Copyright Infringement Liability Limitation Act."

first, the ISP itself is not indemnified against liability if they do not have a designated agent as required by this section.

but first, note this specific liability section--it could be juicy and eventually quite useful

"(f) MISREPRESENTATIONS.--Any person who knowingly materially misrepresents under this section--

"(1) that material or activity is infringing, or "(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it."

now specifically important is exactly what needs to go into your counternotification. try to cite the statute as well, as 17 USC section 512, and/or as the "Online Copyright Infringement Liability Limitation Act" passed Oct. 1998.

this is what that section (g)(3) says:

"(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."

that would only apply if your account was already blocked--but you may care to cite it anyway and respond in that format. or you may not--the DMCA also includes provision for uncovering the name of an alleged copyright infringer so it may be a can of worms not to open *yet*.

if you expect the ISP to knuckle under but can still access your account, keep this information on your normal computer in case you lose access to email etc and back everything up and remove all personally identifying information from the account immediately--also understand that by invoking 17 USC section 512, subsection (h) they can subpoena to identify an infringer, if you are pseudonymous

"(h)SUBPOENA TO IDENTIFY INFRINGER.--

"(1)REQUEST.--A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection."

NOTE: this *only* requires the clerk of the court--as the southern district of new york has shown us, this may confuse the court and they may be unable to locate it. in this case, the court *may* be committing an administrative error that *might* be one of the very few occasions in which you can sue a court. (IANAL and a real one should comment on this.)

i would also request, since you're facing potential termination, that the ISP adhere to the DMCA notification process, and note that if they do not, they lose the indemnification against liability provided by this law--demand only to communicate with their authorized agent as required by 17 USC section 512, subsection (c)(2), on designated agents.

"(2)DESIGNATED AGENT.--The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notification of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

"(A) the name, address, phone number, and electronic mail address of the agent.

"(B) other contact information which the Register of Copyrights may deem appropriate.

"The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory."

in this case, AT&T *does* have a designated agent.

it is Edgar B. Stephenson.

Name of Agent Designated to Receive Notification of Claimed Infringement: Edgar B. Stephenson

Full Address of Designated Agent to which Notification should be sent:
1800 Perimeter Park Drive,
Morrisville, NC 27560
Telephone Number of Designated Agent: (919) 319-8187
Facsimile Number of Designated Agent: (919) 319-8154
E-mail Address of Designated Agent: estephenson@ems.att.com

and they comply by having it available on their web page: http://www.att.net/general-info/claims.html

---

so this subsection applies, to the notification of the cult, 17 USC section 512, subsection (c)(3)

"(3)ELEMENTS OF NOTIFICATION.--

"(A)To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

"(i)A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

"(ii)Identification of the copyrighted work claimed to be infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

"(iii)Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

"(iv)Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

"(v)A statement that the complainant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

"(vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner in an exclusive right that is allegedly infringed.

"(B)(i)Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.

"(ii)In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A)."

this is kind of a mouthful -- but it means if helena kobrin or ava paquette sent email with no electronic or physical signature, the registered agent can promptly demand such notification. if they didn't comply with (A)(ii), (iii), or (iv), it can be safely ignored.

if you are not already corresponding with Edgar B. Stephenson, i'd probably insist on it. then i'd also demand notification of what specific infringements are alleged and a chance to explain it. and then, if your account gets yanked, the counternotification procedure detailed above--which if you don't do it *exactly* as laid out in the law, doesn't work.

it appears AT&T is so far in compliance with these requirements, so i'd start out without any bluster so much as an explanation. but it might be best to ask if the ho note AT&T got was substantially in compliance, and to request a copy.

rob

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