Joho the Blog
An Entry from the Archives

check out a similar situation that my brother had to deal with last year.

it's a joke.

Three members of the Duke University lacrosse team were charged with rape. There is no evidence that they committed rape, and the prosecution withheld important evidence that proved they didn't.

Nevertheless, a large segment of the Duke faculty and the feminist and rape crisis communities found the boys guilty in the court of their subjectivity and they were expelled from school and lambasted in the national media. An injustice was done by what amounts to an angry mob and an over-zealous politician running for re-election.

Does this mean we should repeal the rape laws?

Just trying to see how far your logic goes.

"Does this mean we should repeal the rape laws?"

Your comparison is deeply flawed, because the rape laws did not enter into it.

Brilliant rejoinder, Mr. Collins. Go look up the word "analogy" in your English-Flemish dictionary.

Everyone agrees with you, Richard, that just because a law is misapplied once doesn't mean it ought to be thrown out. Nor did I say the DMCA ought to be thrown out. I said that it ought to be looked at closely and (I implied) altered. Surely the bad application of a law counts as evidence that it might be flawed. If not, then what ever would count as such evidence?

Is it decisive evidence? Nah, single instances rarely are. But this is a pretty gross case: A large corporation is forcing a site to remove 100,000 videos apparently without even looking at them...and without having to ask a court about whether this content should be forced out of the public.

So, I don't think a single case proves that the DMCA is a bad law that needs changing, but I do think such cases are evidence that the law is perhaps poorly drawn.

Also, please don't insult the people who comment on this board. If you really can't resist your urge to go ad hominem, please do it on your own site.

I wasn't aware that "brilliant" was an insult. I'll take care in the future never to insult you with that particular adjective now that I know you're sensitive to it.

I look for injustices and other bad consequences brought about as a rational consequence of a law as evidence of error in concept or drafting. One consequence of the 1996 Telecom Act and the 2006 Network Neutrality Scare is a reduction in investment in network infrastructure, for example. So I would look at neutrality laws critically since I like infrastructure investment. I know that's weird, but I take pride in being eccentric.

The Duke case was clearly a case of a bad actor ignoring the law for his own self-interest, so it's not an indication that the law needs to be changed. Rather, it simply needs to be enforced (although there are elements of rape law that facilitate this sort of misconduct, such as a tacit assumption that all rape claims are true until proved otherwise.)

Is the YouTube matter a case of a bad actor misusing the law, or was it a predictable and consistent consequence of the DMCA's structure and purpose? It seems like an over-zealous order in any case. Your post cited a number of available remedies to injured parties, so I would suggest the DMCA is only in doubt if they fail.

Jim Moore is an attorney, so his attempt at playing the victim here - something he likes to do quite a lot - falls flat.