EFF's Jason Schultz on Landmark Education DMCA



EFF’s Jason Schultz on Landmark Education DMCA

by Enric Teller

November 14, 2006

INTRODUCTION TEXT

On Tuesday, Nov. 14th, 2006, I met with Jason Schultz at the on using the DMCA to inhibit internet speech.

This is Part IV of the interview. The case and what new users can do when they receive a DMCA notice is discussed.

ENRIC TELLER

There is a similar case that the EFF is involved in, with a corporation called Landmark Education, and I wanted to know what your views on that are and what you know about that.

JASON SCHULTZ, ELECTRONIC FRONTIER FOUNDATION

There was a documentary made in France about Landmark Education, they host seminars and do instructional type classes, and they are known to be somewhat secretive about what they teach and how they do it, and somewhat controversial in terms of their approach of what they confront people with in the sessions.

So this documentary was somewhat controversial in France. And what happened was, is that someone took the documentary, or pieces of it, and uploaded it onto various video sharing sites. So like Google Video, YouTube, and the Internet Archive, archive.org.

And Landmark then proceeded to go on a campaign to try and get this documentary pulled off. And in doing so, they not only sent take-down notices under the DMCA, but they also sent subpoenas, to try and find out the identity of the person who posted the video.

The problem is that again, in order to do these things, you have to be the copyright owner of the work in question, of the thing that you want to take down or the thing that was posted by the person whose identity you want to find out.

The French film company, the television station, is the copyright owner. So if anyone had a beef, it would be them. Landmark, however, claimed that in the video, in the documentary, there was certain materials of theirs that were copyrighted that were shown.

Well what it turns out, is, you know, this video is very lengthy, goes on for I believe almost an hour or more, and within that there are three or four or five minutes, where some snippets of little bits and pieces are shown, but they’re shown in a classic First Amendment free speech fair-use way, which is that the video documentary says: ‘Here is a piece of what Landmark teaches people.’ And they quote one sentence from it. And then they’ll turn to the Landmark person they’re interviewing and says: ‘What does this mean?’ or ‘Why do you do this?’ or they’ll comment on it.

In other words, it’s not that they’re just sort of reproducing it out of hand, but they’re actually talking about it, they’re discussing it, it’s part of the commentary and criticism of the piece itself.

ENRIC TELLER

Right.

JASON SCHULTZ

So not only does Landmark not own copyright in most of the video that they’re complaining about, but even the little teeny bits of materials included where they might, it’s a classic First Amendment fair-use of those materials because it’s discussing the contents and the controversy around them.

So we’re currently negotiating with Landmark to drop the case and drop the subpoena and to go away, and to leave this alone, but until that gets resolved, there’s a possibility that there will be a legal fight over it.

ENRIC TELLER

If I’m a video blogger and I’m -- a lot of them are new to it, newbies. And something that’s interested me something that’s important to me, I put up. And I get this DMCA. What do you think should be the first thing I should do? I go to the EFF, I look at the website, I see some information, should I call the EFF? Should I try to look up in the phone book a lawyer? Do you have any recommendations?

JASON SCHULTZ

Sure. Well, one resource we have for all bloggers, video bloggers and written bloggers alike, is we have a blogger’s legal guide, which is on our website at eff.org.

So you can certainly go check that out, that has some of the basic kind of rules of the road for the things you should know about. It includes a section on copyright. It includes a section on defamation, and a couple other things. So that will give you a basic sense.

But yeah if you are confronted by someone who has sent a DMCA notice or has made a legal threat against you, you can certainly contact us. And we’ll take a look at the case, see if we can help, and if we can’t help, we can often help try and find you a lawyer, either pro bono, or if you have a little bit of money, we’ll try and find someone who is reasonable.

If you have a lawyer already, you should definitely already contact that lawyer and discuss it with them as well.

But yeah I think the thing to do is be aware of your rights, as best you can, and the minute you’re contacted by someone, assess what’s going on.

There’s also a website called Chilling Effects, chillingeffects.org, which is a respository of legal cease and desists and DMCA take-down notices. So you can do some research there on what it is. They actually have a form that you can fill out to counter-notice. What happens with the DMCA is the copyright holder or purported copyright holder sends the notice to your host provider -- you have the opportunity then to counter-notice.

ENRIC TELLER

Oh really?

JASON SCHULTZ

Yeah.

ENRIC TELLER

Oh that’s useful.

JASON SCHULTZ

If you do that, the material will still have to stay down for ten days, but if the copyright owner doesn’t sue you, then the material can go back up. And that’s actually kind of a way to kind of counter-balance.

ENRIC TELLER

It can stay up at that point?

JASON SCHULTZ

Yeah. It can stay up at that point.

ENRIC TELLER

Oh okay.

JASON SCHULTZ

Until a lawsuit happens.

ENRIC TELLER

Right, right, right.

JASON SCHULTZ

So that’s a good resource as well.

ENRIC TELLER

That’s a good alternative, yeah.

JASON SCHULTZ

Although again, the material stays down for ten days.

ENRIC TELLER

Yes, which is time sensitive, right.

JASON SCHULTZ

Which is time sensitive and censorship and so that’s part of the problem.

But those are all resources. So Chilling Effects, our bloggers legal guide, and then yeah people should feel free to contact us, or their own lawyers.

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