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Censorship Your Rights Online

Dealing With a Copyright Takedown Request? 547

Posted by kdawson from the define-fair-use-and-give-two-examples dept.
George Maschke writes "I recently received a takedown notice from a corporate lawyer demanding that I remove a post on my Web site's message board. It purportedly lists the first 75 of 567 questions on the MMPI-2 paper-and-pencil psychological test. It seems to me that such posting of a limited amount copyrighted material for discussion purposes on a public-interest, non-profit Web site falls within the scope of the fair use exemption of US copyright law. I have thus declined to remove the post. I believe that the corporation in question is seeking to chill public discussion of its test, which applicants for employment with many governmental agencies are required to complete. I would be interested in this community's thoughts on the matter."
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Dealing With a Copyright Takedown Request? More

Dealing With a Copyright Takedown Request?

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  • Nothing to see here (Score:2, Informative)

    by Anonymous Coward

    This post is temporarily unavailable due to a DMCA takedown notice received by our web hosting company's bandwidth provider. We have sent our service provider a counter-notice and plan to have the original content of this post back up no later than 6 April 2009.

    Ah, looking forward to the /. dupe.

    • Re: (Score:2)

      by gnick ( 1211984 )

      I'm surprised the dupe isn't here. Even if it was pulled within 1 hour, posting the notorious 75 as AC on /. would guarantee a permanent home on TPB or wikileaks.

      Not that I condone that kind of behavior...

        • text (Score:5, Informative)

          by Anonymous Coward on Tuesday March 24, 2009 @01:04AM (#27308179)

          MMPI 2 TEST QUESTIONS IN ORDER
          TRUE OR FALSE (567 QUESTIONS)

          1.I like mechanics magazines
          2.I have a good appetite
          3.I wake up fresh & rested most mornings
          4.I think I would like the work of a librarian
          5.I am easily awakened by noise
          6.I like to read newspaper articles on crime
          7.My hands and feet are usually warm enough
          8.My daily life is full of things that keep me interested
          9.I am about as able to work as I ever was
          10.There seems to be a lump in my throat much of the time
          11.A person should try to understand his dreams and be guided by or take warning from them
          12.I enjoy detective or mystery stories
          13.I work under a great deal of tension
          14.I have diarrhea once a month or more
          15.Once in a while I think of things too bad to talk about
          16.I am sure I get a raw deal from life
          17.My father was a good man
          18.I am very seldom troubled by constipation
          19.When I take a new, I like to be tipped off on whom should be gotten next to
          20.My sex life is satisfactory
          21.At times I have very much wanted to leave home
          22.At times I have fits of laughing & crying that I cannot control
          23.I am troubled by attacks of nausea and vomiting
          24.No one seems to understand me
          25.I would like to be a singer
          26.I feel that it is certainly best to keep my mouth shut when Iâ(TM)m in trouble
          27.Evil spirits possess me at times
          28.When someone does me a wrong I feel I should pay him back if I can, just for the principle of the thing.
          29.I am bothered by acid stomach several times a week
          30.At times I feel like swearing
          31.I have nightmares every few nights
          32.I find it hard to keep my mind on a task or job
          33.I have had very peculiar and strange experiences
          34.I have a cough most of the time
          35.If people had not had it in for me I would have been much more successful
          36.I seldom worry about my heath
          37.I have never been in trouble because of my sex behavior
          38.During one period when I was a youngster I engaged in petty thievery
          39.At times I feel like smashing things
          40.Most any time I would rather sit and daydream than to do anything else
          41.I have had periods of days, weeks, or months when I couldnâ(TM)t take care of things because I couldnâ(TM)t âoeget goingâ
          42.My family does not like the work I have chosen ( or the work I intend to choose for my life work)
          43.My sleep is fitful and disturbed
          44.Much of the time my head seems to hurt all over
          45.I do not always tell the truth
          46.My judgment is better than it ever was
          47.Once a week or oftener I feel suddenly hot all over without apparent cause
          48.When I am with people I am bothered by hearing very queer things
          49.It would be better if almost all laws were thrown away
          50.My soul sometimes leaves my body
          51.I am in just as good physical health as most of my friends
          52.I prefer to pass by school friends, or people I know but have not seen for a long time, unless they speak to me first
          53.A minister can cure disease by praying and putting his hand on your head
          54.I am liked by most people who know me
          55.I am almost never bothered by pains over the heart or in my chest
          56.As a youngster I was suspended from school one or more times for cutting up
          57.I am a good mixer
          58.Everything is turning out just like the prophets of the Bible said it would
          59.I have often had to take orders from someone who did not know as much as I did
          60.I do not read every editorial in the newspaper everyday
          61.I have not lived the right kind of life
          62.Parts of my body often have feeling like burning, tingling, crawling, or like âoegoing to sleepâ
          63.I have had no difficulty in starting or holding my bowel movement
          64.I sometimes keep on at a thing until others lose their patience with me
          65.I loved my father
          66.I see things or animals or people around me that others do not see
          67.I wish I could be as happy as others seem to be
          68.I hardly ever feel pain in the back of

          • Re:text (Score:4, Insightful)

            by unlametheweak ( 1102159 ) on Tuesday March 24, 2009 @01:49AM (#27308423)

            The sad thing is that people who lie on the test (and are consistent about it) are the ones that are going to get hired.

            Take for example, "It would be better if almost all laws were thrown away".
            Now considering that this test is for the police force, it's obvious that the Human Resource types aren't interested in hiring a civil Libertarian, however purely philosophical he is in his beliefs.

            I do not always tell the truth

            If you answer "False" to this (like I would), then you would also be weeded out as a liar. Because well, most people lie most of the time, and according to the HR types, if you don't admit to lying then you are just a dishonest liar.

            I have often had to take orders from someone who did not know as much as I did

            This question is pretty much biased against geeks, or anybody who loves knowledge and education. The police (and companys in general) want people who can take orders without question.

            TAKE NOTE: I have no inside knowledge, but I'm just making some educated guessing, and adding a bit of deduction to what I already know. Just my two cents as they say. In general with these types of tests it seems like they are looking for somebody average and socially adjusted (witch often isn't usually a good thing when average isn't a good thing. But I shall not bring authoritarian societies into the equation).

            • Re: (Score:3, Insightful)

              by Anonymous Coward

              Please note: A civil libertarian != a Libertarian. A civil libertarian is not likely to say "It would be better if almost all laws were thrown away," rather they would want more laws, you know Freedom of Information laws, laws restricting police powers, law restricting administrative powers, that sort of thing.

              • Re: (Score:3, Insightful)

                by profplump ( 309017 )
                You've setup your system backwards. If you start with the right single law -- the state has no powers except those explicitly granted to it -- then removing laws would necessarily do things like restricting police power and granting access to information because the police would only have been granted powers through laws, and the state would only have been granted the right to keep secrets through laws.

                I'm sure the state would love this idea of a system where they implicitly have power and we must explicitl

                • IGNORE IT (Score:3, Interesting)

                  by commodore64_love ( 1445365 )

                  Nobody's stated the obvious:

                  - ignore it

                  The Supreme Court has ruled that a law contrary to the Constitution is as if the law never existed. I think the same applies to DMCA takedown notices. Since the poster only listed a "fair use" portion of the test, not the whole thing, and copyright law protects fair use, the DMCA notice is contrary to existing copyright laws, and therefore it is as if it never existed. It has no force of law.

                  The only time I would pay any attention to such a notice is if I was drug i

                  • Re: (Score:3, Insightful)

                    by JWSmythe ( 446288 ) *

                    Fair use is a gray area though. It all depends on how it's used.

                    If I took a 1000 question test, copied 100 questions from it, and sold that test, I'd clearly be in violation even though I didn't copy the whole thing.

                    If you took 100 of 1000 questions, used them for illustrative purposes, and wrote a long commentary on it, you'd be much safer.

                    In the real message, it was posted by itself. Not cited with a dialogue for a larger work.

                    Fo

                    • Re: (Score:3, Interesting)

                      by JWSmythe ( 446288 ) *

                      The problem with that logic is, I've taken many many intelligence tests over the years. I was in the gifted program from 1st grade through my senior year of high school. We took the tests not only to retest ourselves, but as mental challenges. Quite often, you're not looking for the idiot on the street answer, you're looking for the "what is the author asking".

                      Like, which of these letters is out of place. I won't give the answer in this message, I'll come back later and put

                    • Re: (Score:3, Interesting)

                      by JWSmythe ( 446288 ) *

                      Exactly. They pick an arbitrary reason, and then the tester has to be part mind reader to get the right answers.

                      When I was presented with the question, I came back with quite a few answers, which all were just as reasonable. If I remember right, I came back with "A". Once I knew the answer (because it was a learning exercise), when I was presented with it on another test, I was able to answer it correctly.

                      The "right" answer was "B", because it was the only let

            • Re:text (Score:5, Funny)

              by Greyfox ( 87712 ) on Tuesday March 24, 2009 @04:13AM (#27308965) Homepage Journal
              I always lie, therefore I would have to answer "false" to "I do not always tell the truth."

              Why do I get the feeling that other than that one question their test would show me to be a model employee?

              • Re:text (Score:4, Funny)

                by tecnico.hitos ( 1490201 ) on Tuesday March 24, 2009 @08:08AM (#27310057)

                I always lie, therefore I would have to answer "false" to "I do not always tell the truth."

                Why do I get the feeling that other than that one question their test would show me to be a model employee?

                Wait. You say you always lie, but if this is truth you are lying and you always say the truth. But if you always say the truth you wouldn't say you lie and you would still answer false. But then they would assume you to be lying, like you said you always do. But if... nevermind.

                Sigh... I want a cake...

            • Re:text (Score:4, Interesting)

              by horatio ( 127595 ) on Tuesday March 24, 2009 @08:52AM (#27310423)

              I'm just making some educated guessing

              Not so much. They rarely look at individual answers on (real, not one of the fake made-up HR) personality inventories like the MMPI, unless there is some specific reason to do so. The test is scored, and certain questions combine to form a score for a particular category - honesty, outlook (are you happy, morose, depressed?), self-control, etc. They're also looking at your beliefs about things like how much you control the outcome of a situation - is it all deterministic (your actions are 100% responsible) or luck (you can't change the outcome of anything). The same question can and is asked in different ways - this is where they try to get at honesty, or if you're paying attention to what you're doing. Non-sensical scores might cause the evaulator to look at individual questions to see if something is wrong (ie did you mark A,B,C,D,E in that order all the way down the test)

              While this type of battery could be performed by HR I suppose, being that it is a psychological test, it is generally administered and evaluated by a trained professional, or agency. Because of this, it is also generally covered by human subjects rules.

              Answering the "wrong way" to one or two questions (out of over 500) isn't going to flag you as a crazy anarchist. Now, if the HR dept sees the Ron Paul bumper sticker on your car [kansascity.com]...

              * I have a psychology degree, but it has been a while so I've forgotten a few things.

            • Re: (Score:3, Informative)

              by Dun Malg ( 230075 )

              The sad thing is that people who lie on the test (and are consistent about it) are the ones that are going to get hired.

              MMPI-2 isn't something given by HR people, and the answers to the questions aren't analyzed one-by-one anyway. Furthermore, one of the axes it measures is truthfulness in answering the questions, and this in turn affects the scores on other axes.

              Basically, you're looking too closely at the individual questions. This is a psychiatric test for rough clinical diagnosis.

              You might be asked to take the MMPI-2 if you are going to work with classified information in the military, but the hiring manager at Spu

              • Re: (Score:3, Interesting)

                by Culture20 ( 968837 )
                This is/was false. Years ago, two minimum wage jobs I had both gave me MMPI tests before hiring. Neither was dealing with national secrets, but one did require high levels of trust in me (in my position, shoplifting would have been easy). Not having done minimum wage since then, I don't know if they still use it.

              • Re:text (Score:5, Interesting)

                by Attila Dimedici ( 1036002 ) on Tuesday March 24, 2009 @11:01AM (#27311867)
                I have taken personality tests for several jobs that I applied for. I was not offered an interview at any of these jobs. I do not know if the test had anything to do with it. However, at one of them a friend of mine was offered a job. I know that he has no qualms about stealing from his employer. He has always had a justification for stealing from every employer that he worked for, but he passed the tests.
                Additionally, I was a store manager for a company that decided to introduce personality tests into the hiring process. My boss as part of the roll out, had the existing employees take the test to give HR a baseline. All of the store managers but one failed. The one who passed was one they were trying to get rid of for poor performance. They did away with the tests shortly after they fired her for stealing from the company.

            • Re:text (Score:5, Interesting)

              by Thelasko ( 1196535 ) on Tuesday March 24, 2009 @09:17AM (#27310669) Journal

              The sad thing is that people who lie on the test (and are consistent about it) are the ones that are going to get hired.

              I posted a story [slashdot.org] about these types of tests in January. One comment stood out:

              These types of tests have been used ever since professional management was invented as a skill separate from actually being able to do anything economically useful.

              I suggest that anyone who has to work in an organization that uses these types of tests read "The Organization Man" by William H. Whyte. Some key chapters are online here: http://www.writing.upenn.edu/~afilreis/50s/whyte-main.html [upenn.edu] [upenn.edu] However, what is not online is the Appendix, titled "How To Cheat on Personality Tests". The book was published in 1956.

              Whyte doesn't suggest that you cheat on personality tests just because you are greedy, or because corporations are evil and you have to survive, or anything radical like that. It is clear from the book that Whyte is the kind of guy who presumes that most people are well-intentioned, that managers probably want to hire the best, and they need these scores to cover their ass, so people should give the correct answers on tests so managers can then pick the good guys and promote them.

              Meyer-Briggs and Minnesota Multi-Phasic whatchamacallits have never been shown to be of any practical use, and their pointlessness has been known for decades.

              "The Organization Man" is one of the funniest books I have ever read, but I think it is only funny if you have been exposed to Organization Men enough to recogize the traits he points out, and it is a kind of dry, no-punch line humour that I associate with old men who are constantly laughing at you inside. For the enjoyment of Slashdot I will reproduce here a couple of paragraphs from the "How to Cheat on Personality Tests" chapter:

              "The important thing to realize is that you don't win a good score: you avoid a bad one. (...) Sometimes it is perfectly all right for you to score in the 80th or 90th percentile; if you are being tested, for example, to see if you would make a good chemist, a score indicating that you are likely to be more reflective than ninety out of a hundred adults might not harm you and might even do you some good."

              "By and large, however, your safety lies in getting a score somewhere between the 40th and 60th percentiles, which is to say, you should try to answer as if you were like everyone else is supposed to be. This is not always too easy to figure out, of course, and this is one of the reasons why I will go into some detail in the following paragraphs on the principal types of questions. When in doubt, however, there are two general rules you can follow: (1) When asked for word associations or comments about the world, give the most convential, run-of-the-mill, pedestrian answer possible. (2) To settle the most beneficial answer to any question, repeat to yourself:

              a) I loved my father and my mother, but my father a little bit more
              b) I like things pretty well the way they are
              c) I never worry much about anything
              d) I don't care for books or music much
              e) I love my wife and children
              f) I don't let them get in the way of company work"

              You know what is the saddest about these personality tests ? This guide to cheating on them was written just a few years after the basic ones became popular (they were developed in the 20's and 30's, came into use and were standardized (and also statistically tested and proven worthless) in the bureaucracy of WWII, and The Organization Man was published in '56), but the cheat guide works perfectly well even for tests developed long after the cheat guide was written.

              You can take a computer administered test developed in the last few years by the best minds in modern management theory, and cheat it with a guide written over 50 years ago.

          • Re:text (Score:5, Funny)

            by LaskoVortex ( 1153471 ) on Tuesday March 24, 2009 @03:48AM (#27308883)
            Screw the questions, man. Post the friggin' answers!

          • Is this test legal in the US...? (Score:5, Interesting)

            by SomethingOrOther ( 521702 ) on Tuesday March 24, 2009 @04:47AM (#27309087) Homepage
            Such a test would be rather illegal in the UK, and probably much of the EU.

            20.My sex life is satisfactory
            69.I am very strongly attracted by members of my own sex
            Both questions could count as sexual harassment. (Aside from the fact, most sane people would tell the questioner to fuck off and mind there own business)

            14.I have diarrhea once a month or more
            Surely questions about your health that are not job releted are illegal?

            58.Everything is turning out just like the prophets of the Bible said it would
            LOL ! Don't get me started on the legality of this one!

            I'm honestly amazed these questions are considered acceptable.
            Here, they WOULD bring the law crashing down on you.

  • Advice (Score:5, Insightful)

    by MightyMartian ( 840721 ) on Tuesday March 24, 2009 @12:07AM (#27307795) Journal

    I'm sure most people will agree that what you've done falls well within the realm of fair use. But you know very well that you're going to need to talk to legal counsel with expertise in copyright matters, and that means money. Maybe someone with contacts in the Electronic Frontier Foundation could give you a hand. Sometimes having a lawyer responding to the guy making the threat is enough to make them back down.

    • [ And now for the standard disclaimer: Legal advice is given by an attorney duly admitted to practice law after confidentially and candidly hearing your version of the facts and applying a specialized analysis of the facts and relevant law. This, however, is a silly post on the Internet, and not legal advice. No attorney-client privilege is created with anyone as a result of this post. Do not taunt Happy Fun Ball. If legal advice is what you want, go hire a competent lawyer. Don't ask slashdot. ]

      Thanks t

    • What's the question again? (Score:5, Informative)

      by mcrbids ( 148650 ) on Tuesday March 24, 2009 @12:16AM (#27307873) Journal

      Your choice is pretty simple:

      1) Take it down, or

      2) Deal with their lawyers.

      Since you are asking Slashdot, you don't have a lawyer, or you wouldn't need the reams of idiocy you'll find as a response**. They didn't mention the DMCA, which would at least allow you to defer the problem to the original poster. (who could ask to have it put back up after you notify them)

      You got nothing. So, take it down, and resist the urge to post it to wikileaks while enjoying a $0.75 cup of coffee at a local coffee shop with Wifi because that might be considered (ahem) copyright infringement... how long you resist that urge is up to you.

      Some fights are worth fighting. It's rarely worth fighting a fight you have no resources to win. Pearson is a big, big, big uber-ultra teh evil mega-corporation, but this is unlikely to be controversial enough to benefit from the Streissand Effect.

      You have much better things to worry about.

      ** Feel free to consider this post idiotic

    • Re:Advice (Score:4, Informative)

      by rackserverdeals ( 1503561 ) on Tuesday March 24, 2009 @12:50AM (#27308103) Homepage Journal

      Fair use is an affirmative defense, you can't just claim it as a right but have to prove your use was "fair" in court.

      As a site owner, I believe he is protected by the safe harbor provisions; the takedown notice likely identifies the forum poster as in violation and not the site. So he can just pass along the take down notice to the poster and let him deal with it. But to retain safe harbor protections he will have to take the message down until there is a resolution.

      A good site to visit is eff.org [eff.org]. I believe you can forward the take down notice to them and they will either take on the case or forward it to a lawyer that might help for a fee. Or maybe that's just for cease and desist orders? Anyway, the site is a good place to start looking for information.

      I'm not a lawyer.

      • Re:Advice (Score:5, Insightful)

        by yali ( 209015 ) on Tuesday March 24, 2009 @01:45AM (#27308403)

        Fair use is an affirmative defense, you can't just claim it as a right but have to prove your use was "fair" in court.

        Mod parent up -- this quote is key. Popular folklore on the Internets holds that there is a certain percentage of material you can post that qualifies as fair use. That is bogus. Fair use is a judgment call based on a balance of four factors. [stanford.edu] From the linked Stanford Law site: "The only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court."

        The copyright holders probably would argue that the amount of quoted material is excessive (one of the 4 factors) and that simply posting the items for discussion does not have adequate "transformative value" (another factor). Furthermore, they would probably argue that copying those test items will have a significant detrimental effect on the market for their product (yet another of the factors). On this point, they may well have the American Psychological Association backing them up. The official position of the APA is that psychological tests require careful protection because disclosing their content can invalidate the tests [apa.org]. If this went to court, judge would probably be strongly influenced by a friend-of-the-court brief from the world's largest professional society of psychologists.

        Disclaimer: I am not a lawyer either.

        • Re:Advice (Score:5, Insightful)

          by DerekLyons ( 302214 ) <fairwater@@@gmail...com> on Tuesday March 24, 2009 @03:03AM (#27308721) Homepage

          Fair use is an affirmative defense, you can't just claim it as a right but have to prove your use was "fair" in court.

          Mod parent up -- this quote is key. Popular folklore on the Internets holds that there is a certain percentage of material you can post that qualifies as fair use. That is bogus.

          It's much worse than that - popular folklore on the Internet holds that "fair use" is a magic wand. All you have to do is invoke it (believe strongly enough that you are right) and you are magically protected.

  • WANAL (Score:5, Interesting)

    by SuperKendall ( 25149 ) on Tuesday March 24, 2009 @12:07AM (#27307799)

    Hi, I'm not a lawyer nor are many people you're likely to see posting here.

    But that percentage sounds like it may just cross the line for fair use, or perhaps even editorial comment. If you are going to go against the wishes of a larger entity, be sure of the percentage that might cross a line and trim to that. It may not be necessary to remove if you can editorialize.

    Otherwise, I hope you run the website through an LLC.

  • Well.. It may not (Score:5, Insightful)

    by Pahalial ( 580781 ) on Tuesday March 24, 2009 @12:07AM (#27307801)
    This is a particular case, given that it is dealing with a psychological test. In many or most cases these rely on the test-taker not knowing the exact questions ahead of time. As you're dealing with over 10% of the test here, it's not all that far-fetched to say that foreknowledge of these questions could skew the results in a statistically significant way. This would count as causing harm or devaluing the original work (by causing prospective clients [the government] to doubt its results), which are direct reasons for fair use not to apply. Of course, IANAL and you should seek one, etc, but it seems to me that this is not that unreasonable a claim. A single question? Sure. 75 of them? Probably not so much.

    • but you can't really debate the questions on this type of test without posting actual questions... not the demo questions, or sample questions.

      Like the poster said, they wanted to debate whether these were appropriate or stilted when used as mandatory tests by public agencies. These are the tests they hand out en masse and if you don't score the "right thing" in the right areas they just don't call you back.

      I think 10%+ is a bit high to fight off a DMCA request, but it's a good question how much is "fair u

      • He published well under 10% (Score:4, Insightful)

        by tomhudson ( 43916 ) <barbara.hudson@b ... m ['son' in gap]> on Tuesday March 24, 2009 @08:25AM (#27310169) Journal

        He may have published 13% of the questions, but that's well under 10% of the total material related to the MMPI test - you need the scoring criteria as well. The questions, by themselves, are pretty much worthless, and you can be sure that the scoring criteria are longer than the test itself - otherwise, the test is even more bs than it seems.

        These are the tests they hand out en masse and if you don't score the "right thing" in the right areas they just don't call you back.

        So, since they already hand them out in such quantities (and they really do), there's no "trade secret". Anyone who has taken the test now has the "trade secret knowledge", and without a signed non-disclosure agreement to boot.

        Tempest, meet teapot.

        The questions themselves are a valid topic of discussion, especially when used in an employment context, where they are, in many areas, just plain illegal to ask.

  • Don't be an idiot (Score:5, Informative)

    by Amazing Quantum Man ( 458715 ) on Tuesday March 24, 2009 @12:08AM (#27307803) Homepage

    Ask a lawyer, not Slashdot.

    • Re: (Score:3, Insightful)

      by ljw1004 ( 764174 )

      A lawyer won't be any use.

      The lawyer will tell you: "I recommend you take this down to avoid any chance of prosecution."

      If you ask the lawyer "well, do I have any fair-use grounds for keeping it up?" the lawyer will still give you the same answer "I recommend you take it down to avoid any chance of prosecution."

      If you ask the lawyer "if it goes to court what are my chances of winning?" the lawyer will still give you the same answer "We won't know until it goes to court; I recommend you take it down to avoid

      • Re: (Score:3, Insightful)

        by Fluffeh ( 1273756 )

        The lawyer's job is NOT to evaluate your best course of action that balances your wishes to keep the material with your wishes not to be sued. The lawyer will only do two things: (1) advise you to minimize your risks; (2) represent you if you keep the material up.

        Well, yes, if you hire a cereal container for a lawyer, this will certainly be the case.

        If you however hire a lawyer and ask for advice on why this request for taking it down is not valid, you might get a list of responses that accurately answers the question. Or then again, you might get what you just wrote. When speaking to a lawyer, make sure they know your mindframe in this. Do you want to keep it up? Do you want to fight to keep it up? What is your motivation for keeping it up as opposed to just t

      • Re:Don't be an idiot (Score:5, Informative)

        by TekPolitik ( 147802 ) on Tuesday March 24, 2009 @08:19AM (#27310131) Journal

        The lawyer's job is NOT to evaluate your best course of action that balances your wishes to keep the material with your wishes not to be sued. The lawyer will only do two things: (1) advise you to minimize your risks; (2) represent you if you keep the material up.

        IAAL, and this is not correct at all.

        Lawyers usually advise in terms of probabilities as a CYA technique. Strangely enough, people who consult lawyers are more likely to sue than people who don't, so lawyers spend a lot of time putting in these CYA qualifiers. The following Lawyerese to English translations may help:

        May: Yes
        Might: Probably
        Unclear: Your guess is as good as mine
        Unlikely: No
        Very unlikely: Hell no

        Topical example - lawyer advising a paying client: In the situation described in TFA, given the amount of material taken, which appears to be much more than would be necessary for any "fair use", it is very unlikely that a defence of fair use would be successful in court.

        Topical example - lawyer making a comment informally without any liability: If you think the situation in TFA amounts to fair use you're out of your ****ing mind!

        In places with a divided profession (solicitors and barristers rather than attorneys) you can get the second sort of advice on a paid basis from a barrister (or your solicitor can get it for you), although it will cost a lot more and will still have qualifiers in it indicating where the risks are.

        Even where a client insists on doing something risky, a lawyer will be prepared to give advice on steps the client can take to minimise the risk. If a lawyer refuses to do that, you should find another one.

  • Ask a bunch of random people on the internet? (Score:5, Insightful)

    by Hal The Computer ( 674045 ) on Tuesday March 24, 2009 @12:08AM (#27307807)

    Why do all of the Ask Slashdot questions boil down to: "I want free legal advice. Give me an opinion on x."

    My thought is that you should really ask a lawyer what to do. Sheesh, do you really want free legal advice from random people with lots of free time on their hands?

    • Why do all of the Ask Slashdot questions boil down to: "I want free legal advice. Give me an opinion on x."

      Because us nerds are scared of the law and getting out of pocket with fines/thrown into jail (We just won't do well in that environment) but at the same time we don't want to go paying someone for legal advice that is going to leave us out of pocket. It's such a conundrum!

    • Re: (Score:2)

      by dmomo ( 256005 )

      While it may not be the correct forum for the poster to seek legal advice, it is, in my opinion, a welcome subject matter to our forum.

      Perhaps this person will not be helped by the discussion, and perhaps I will have not learned anything from this discussion in particular. However, that fact that these discussions do make their way into these forums has been interesting to me. I agree that too many would be, well overkill. But I do think I benefit from these discussions. Copyright is one of those "gray

    • Re:Ask a bunch of random people on the internet? (Score:5, Insightful)

      by im_thatoneguy ( 819432 ) on Tuesday March 24, 2009 @12:26AM (#27307933)

      Probably because in every other aspect except for Law and Medicine what we scrounge up is good enough.

      I Am Not A Mechanic but I might be able to fix your engine.
      "I Am Not A __Insert Profession ____ but I do have experience with XYZ." Is a pretty reasonable statement. We ask the group how well various systems work all the time and consult friends who aren't experts at length on a variety of topics. In fact many times the group advice and wisdom is pretty sound.

      The problem is the law is something we all are subject to and it's incredibly specific and incredibly tightly nuanced. As much so as advanced engineering. Most of us never need an accurate weight load stress analysis from an engineer but legal advice is necessary to remain free and properous.

      Even lawyers often can't tell you what the law says. If they could we wouldn't need them to defend us in spite of whatever it is the law is supposed to say

      • Most of us never need an accurate weight load stress analysis from an engineer but legal advice is necessary to remain free and properous.

        If only lawyers needed periodic weight load stress analyses; I could charge them $250 "consultation" fees followed by $200/hr "research" fees, all to produce a result I could have created in 5 minutes with my calculator.

    • Re: (Score:2)

      by Xtravar ( 725372 )

      He's not actually asking for legal advice. He's helping the Streisand effect take hold of the situation so that they get screwed even when he does take the questions down.

    • Ok, I agree, from now on we should not discuss about legal issue with people who are not lawyers, we should not discuss health issues with people who are not doctors, we should not discuss philosophical issues with people who are not philosophers, and we should not listen to opinions of people who don't have a degree in having opinions. Do you have such a degree?

    • Why do all of the Ask Slashdot questions boil down to: "I want free legal advice. Give me an opinion on x."

      They don't. They boil down to "I want free legal advice about my online rights".

      Most people here don't care about the legal advice part, in fact, especially if they don't live in the US, but they are likely interested to see if the online rights part is something new they haven't heard before.

      Those make good stories for whenever one has to chitchat with non-geeks who don't care about CPU arch

  • ...not a bunch of random strangers!

    Everything you read here, however sensible it may sound, is just noise. Case law matters. Statues matter. Public opinion, common sense, logic and reasonableness do not matter.

  • I have a soft spot for messing with the MMPI. Way, way back one of the first programs I ever touched was an MMPI for an Apple II. I um, altered it slightly so that everyone was a tad more paranoid. You have to screw with the MMPI... a program that determines mental health.. why, it almost makes me feel sane to think about it!

  • chillingeffects.org (Score:5, Informative)

    by Anonymous Coward on Tuesday March 24, 2009 @12:10AM (#27307823)

    Go immediately to http://www.chillingeffects.org/

  • Get a lawyer (Score:5, Informative)

    by Selanit ( 192811 ) on Tuesday March 24, 2009 @12:11AM (#27307837)

    You've already received a formal takedown notice from a genuine lawyer; you need to consult a lawyer of your own. ASAP. The Slashdot community's thoughts may well be interesting/insightful/flamebait/overrated, but they're no substitute for trained legal counsel.

    Look up your local bar and see if you can find an IP lawyer with reasonable rates for a consultation. Failing that, contact the Electronic Frontier Foundation; perhaps they can help, or at least point you in the right direction.

  • From your website, it appears that you are in the Netherlands. This will completely change the answer to your question. And yet you don't even mention it. I'll echo the other posters and say "Ask a Dutch lawyer."

  • Just throw it away (Score:5, Interesting)

    by Gothmolly ( 148874 ) on Tuesday March 24, 2009 @12:14AM (#27307857)

    Was it certified? Can they prove they sent it?

  • Still cached here at the moment: http://bit.ly/b14Bx [bit.ly]

    At least until the lawyers notice and take a number in the long line of people trying to get things out of Google's cache.

  • You believe they are trying to prevent public discussion of their test material. They claim you are hurting their business interests.

    If you think they might be lying, you could ask them to take a polygraph test. Oh....yeah, sorry.

  • 75 of 567 is *NOT* "limited amount" (Score:5, Insightful)

    by Anonymous Coward on Tuesday March 24, 2009 @12:20AM (#27307897)

    Sorry, but 13% of the content is not "limited". If I reprint 85 pages of "Harry Potter and the Half-Blood Prince", would you consider that a "limited amount"? I don't think the publisher would... Not to mention you say "the first 75"... If it had been a 'random' 75, with commentary and discussion for each one; that would be one thing. Even then, it would be dubious. Even if I split it into one-paragraph sections, with commentary and discussion between each paragraph, 85 pages worth of Harry Potter would be difficult to claim under fair use.

    For example, the usage of 400 words out of a 500 page book was considered infringement: Harper Row vs. Nation Enterprises [wikipedia.org].

    Now, according to the wonderful DMCA, if you take the material down now, *YOU* are safe from prosecution. If you present the user of your board the opportunity to protest, then if they want to put it back up, *THEY* become the responsible party.

  • Don't listen to the 10% comments (Score:2, Informative)

    by Anonymous Coward

    The reason you need a lawyer is there is no bright line test for fair use, and you're getting a lot of bad advice from the people who start with IANAL. Fair use is decided on four main factors, and the law is all over the place (and judge dependent).

    "there are no absolute rules as to how much of a copyrighted work may be copied and still be considered fair use" (Maxtone-Graham v. Burtchaell, 803 F.2d at 1263).

    Check out Stanford's fair use examples page to get an idea of what you're looking at:

    http://fairuse

  • It's scary any time you try to exercise your right to fair use. The problem is that the definition is vague, and you'll never know if you're okay until someone sues you and you get your day in court -- which you really don't want to happen.

    I can predict that a lot of slashdotters will say, "Don't ask for legal advice on Ask Slashdot -- we're not lawyers!" Well, yeah, but obviously the OP can't afford to get a lawyer to take care of this, and the chilling effect he refers to in his post comes from the fac

  • Update on Situation (Score:5, Interesting)

    by George Maschke ( 699175 ) on Tuesday March 24, 2009 @12:36AM (#27307993) Homepage
    Since I posted this to Slashdot a few days ago, my webhosting provider (CanadianWebhosting.com) received a communication from its bandwidth provider (Peer1.com) that unless the post that was the subject of the DMCA takedown notice was removed, the entire server (which hosts other Canadian Webhosting customers, too) would be taken offline. So I reluctantly agreed to temporarily remove the post in question and have replaced it with a brief notice explaining the situation.

    Peer1.com seems to be under the impression that once a DMCA takedown notice is received, the material mentioned in the notice must be removed for a period of 14 days, after which, if the complainant does not provide notification that it has sought a court order, the material may be restored. However, my understanding is that the material may be placed back on-line [dri.org] (PDF) promptly upon the service provider's receipt of a counter-claim (which I have already sent), that is, there is no need to wait 14 days.

    It's also worth noting that Pearson, the copyright holder of the MMPI-2, filed a takedown notice for the very same post in 2007. We promptly filed a counter-notice, Pearson took no further action, and we thought the matter resolved. Has anyone had a problem with a copyright holder filing repeated DMCA takedown notices to one's service provider for the same material?

    • Re:Update on Situation (Score:4, Insightful)

      by Kjella ( 173770 ) on Tuesday March 24, 2009 @02:28AM (#27308597) Homepage

      Peer1.com seems to be under the impression that once a DMCA takedown notice is received, the material mentioned in the notice must be removed for a period of 14 days, after which, if the complainant does not provide notification that it has sought a court order, the material may be restored. However, my understanding is that the material may be placed back on-line (PDF) promptly upon the service provider's receipt of a counter-claim (which I have already sent), that is, there is no need to wait 14 days.

      Which clearly shows you are not competent in these matters. From USC 512(g)(2) found here [cornell.edu]:

      (C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service providers system or network.

      The ISP is required by law to follow this procedure to avoid liability. I wonder if your knowledge of "fair use" is much better.

    • Re: (Score:3, Interesting)

      by Sycraft-fu ( 314770 )

      Well, my guess is they will continue to send notices periodically (as whatever sweep they do happens across it again). As to if they go farther, who knows? I'd suspect not, but then they may get fed up with you, or there may be new management or what not.

      If you leave the material up, it could go one of two ways:

      1) They never go further than take down notices, since real trials are expensive and they could lose. In this case, all you need to do is make your provider happy with whatever counter notice you nee

  • Some of these don't exactly look professionally written. No "university" that I know of would ever let something like #19 get published with so many glaring errors that it's difficult to tell what the original intent of the question was. (see unedited copy below)
    .

    19.When I take a new, I like to be tipped off on whom should be gotten next to

    Some of the questions are also phrased in the past tense; I would expect this to be corrected (e.g. "was or is") on a professional psychological profile survey.

    I wond

  • "Fair Use" (Score:2, Insightful)

    by bobasp111 ( 1481395 )
    Please forgive the vague nature of this post. I once heard an interview with a woman who worked for the copyright office (I think) in some legal capacity. Really, I don't remember exactly who she was, who she worked for, or what she did. It was a while ago, and audio not print. Suffice to say, she had some legal expertise in these matter.

    The thing I do remember, very clearly, is her comments on "fair use." She said that "fair use" is hardly ever what we think it is. It is not what is fair. It is not what

  • I don't think you can copyright voodoo (MMPI2).

  • What, These Questions? (Score:5, Informative)

    by Quothz ( 683368 ) on Tuesday March 24, 2009 @12:56AM (#27308135) Journal
    MMPI 2 TEST QUESTIONS IN ORDER

    TRUE OR FALSE (567 QUESTIONS)

    1.I like mechanics magazines

    2.I have a good appetite

    3.I wake up fresh & rested most mornings

    4.I think I would like the work of a librarian

    5.I am easily awakened by noise

    6.I like to read newspaper articles on crime

    7.My hands and feet are usually warm enough

    8.My daily life is full of things that keep me interested

    9.I am about as able to work as I ever was

    10.There seems to be a lump in my throat much of the time

    11.A person should try to understand his dreams and be guided by or take warning from them

    12.I enjoy detective or mystery stories

    13.I work under a great deal of tension

    14.I have diarrhea once a month or more

    15.Once in a while I think of things too bad to talk about

    16.I am sure I get a raw deal from life

    17.My father was a good man

    18.I am very seldom troubled by constipation

    19.When I take a new, I like to be tipped off on whom should be gotten next to

    20.My sex life is satisfactory

    21.At times I have very much wanted to leave home

    22.At times I have fits of laughing & crying that I cannot control

    23.I am troubled by attacks of nausea and vomiting

    24.No one seems to understand me

    25.I would like to be a singer

    26.I feel that it is certainly best to keep my mouth shut when Iâ(TM)m in trouble

    27.Evil spirits possess me at times

    28.When someone does me a wrong I feel I should pay him back if I can, just for the principle of the thing.

    29.I am bothered by acid stomach several times a week

    30.At times I feel like swearing

    31.I have nightmares every few nights

    32.I find it hard to keep my mind on a task or job

    33.I have had very peculiar and strange experiences

    34.I have a cough most of the time

    35.If people had not had it in for me I would have been much more successful

    36.I seldom worry about my heath

    37.I have never been in trouble because of my sex behavior

    38.During one period when I was a youngster I engaged in petty thievery

    39.At times I feel like smashing things

    40.Most any time I would rather sit and daydream than to do anything else

    41.I have had periods of days, weeks, or months when I couldnâ(TM)t take care of things because I couldnâ(TM)t âoeget goingâ

    42.My family does not like the work I have chosen ( or the work I intend to choose for my life work)

    43.My sleep is fitful and disturbed

    44.Much of the time my head seems to hurt all over

    45.I do not always tell the truth

    46.My judgment is better than it ever was

    47.Once a week or oftener I feel suddenly hot all over without apparent cause

    48.When I am with people I am bothered by hearing very queer things

    49.It would be better if almost all laws were thrown away

    50.My soul sometimes leaves my body

    51.I am in just as good physical health as most of my friends

    52.I prefer to pass by school friends, or people I know but have not seen for a long time, unless they speak to me first

    53.A minister can cure disease by praying and putting his hand on your head

    54.I am liked by most people who know me

    55.I am almost never bothered by pains over the heart or in my chest

    56.As a youngster I was suspended from school one or more times for cutting up

    57.I am a good mixer

    58.Everything is turning out just like the prophets of the Bible said it would

    59.I have often had to take orders from someone who did not know as much as I did

    60.I do not read every editorial in the newspaper everyday

    61.I have not lived the right kind of life

    62.Parts of my body often have feeling like burning, tingling, crawling, or like âoegoing to sleepâ

    63.I have had no difficulty in starting or holding my bowel movement

    64.I sometimes keep

    • Re:What, These Questions? (Score:5, Interesting)

      by Anonymous Coward on Tuesday March 24, 2009 @01:26AM (#27308303)
      Not quite, it's these questions: 1. I like mechanics magazines. 2. I have a good appetite. 3. I wake up fresh and rested most mornings. 4. I think I would enjoy the work of a librarian. 5. I am easily awakened by noise. 6. My father is a good man (or if your father is dead) my father was a good man. 7. I like to read newspaper articles on crime. 8. My hands and feet are usually warm enough. 9. My daily life is full of things that keep me interested. 10. I am about as able to work as I ever was. 11. There seems to be a lump in my throat much of the time. 12. My sex life is satisfactory. 13. People should try to understand their dreams and be guided by or take warning from them. 14. I enjoy detective or mystery stories. 15. I work under a great deal of tension. 16. Once in a while I think of things too bad to talk about. 17. I am sure I get a raw deal from life. 18. I am troubled by attacks of nausea and vomiting. 19. When I take a new job, I like to find out whom it is important to be nice to. 20. I am very seldom bothered by constipation. 21. At times I have very much wanted to leave home. 22. No one seems to understand me. 23. At times I have fits of laughing and crying that I cannot control. 24. Evil spirits possess me at times. 25. I would like to be a singer. 26. I feel that it is certainly best to keep my mouth shut when I am in trouble. 27. When people do me wrong, I feel I should pay them back, just for the principle of the thing. 28. I am bothered by an upset stomach several times a week. 29. At times I feel like swearing. 30. I have nightmares every few nights. 31. I find it hard to keep my mind on a task or job. 32. I have had very peculiar and strange experiences. 33. I seldom worry about my health. 34. I have never been in trouble because of my sexual behavior. 35. Sometimes when I was young I stole things. 36. I have a cough most of the time. 37. At times I feel like smashing things. 38. I have had periods of days, weeks, or months when I couldnâ(TM)t take care of things because I couldnâ(TM)t âoeget goingâ. 39. My sleep is fitful and disturbed. 40. Much of the time, my head seems to hurt all over. 41. I do not always tell the truth. 42. If people had not had it in for me, I would have been much more successful. 43. My judgment is better than it ever was. 44. Once a week (or more often) I suddenly feel hot all over, for no reason. 45. I am in just as good physical health as most of my friends. 46. I prefer to pass by school friends, or people I know but have not seen for a long time, unless they speak to me first. 47. I am almost never bothered by pains over my heart or in my chest. 48. Most anytime I would rather sit and daydream than do anything else. 49. I am a very sociable person. 50. I have often had to take orders from someone who did not know as much as I did. 51. I do not read every editorial in the newspaper every day. 52. I have not lived the right kind of life. 53. Parts of my body often have feelings like burning, tingling, crawling, or like âoegoing to sleepâ. 54. My family does not like the work I have chosen (or the work I intend to choose for my lifework). 55. I sometimes keep on at a thing until others lose their patience with me. 56. I wish I could be as happy as others seem to be. 57. I hardly ever feel pain in the back of my neck. 58. I think a great many people exaggerate their misfortunes in order to gain the sympathy and help of others. 59. I am troubled by discomfort in the pit of my stomach every few days or so. 60. When I am with people I am bothered by hearing very strange things. 61. I am an important person. 62. I have often wished I were a girl. (or if you are a girl) I have never been sorry that I am a girl. 63. My feelings are not easily hurt. 64. I enjoy reading love stories. 65. Most of the time I feel blue. 66. It would be better if almost all laws were thrown away. 67. I like poetry. 68. I sometimes tease animals. 69. I think I would like the kind of work a forest ranger does. 70. I am easily downed in an argument. 71. These days I find it h

  • Take it down. (Score:3, Insightful)

    by seeker_1us ( 1203072 ) on Tuesday March 24, 2009 @01:14AM (#27308243)
    As much as I am NOT a fan of the DMCA: This is 13% of their test. It's 1/8. For a test, I wouldn't consider it a small sample.

    If you want to fight it, you and your layers need to come up with a good reason that you need to redistribute so large a percentage of a a test as "fair use."

  • Google cache still has it (Score:3, Informative)

    by noidentity ( 188756 ) on Tuesday March 24, 2009 @01:18AM (#27308269)
    Google's cache still has the content. [google.com]

  • EXPLANATION: How the MMPI test works (Score:5, Insightful)

    by Markmarkmark ( 512275 ) on Tuesday March 24, 2009 @02:50AM (#27308675) Homepage

    I noticed several posts pointing out some of the seemingly silly questions (ie "My hands and feet get cold"). They may in fact be silly but there is reasoning behind them. I went and actually did some reading up on how the test is supposed to work. There are 8 different major scales measured and several other more minor ones too. For example Scale 1 is essentially looking at Hypochondria, a person's tendency to be really focused on (and maybe whiny) about every little ache and pain. The test understands that everyone has some stuff wrong with them and certain physical peeves too, so you're supposed to mark some of the stuff "T". But if you look at the questions, there are a bunch about this physical stuff and they are all over the place. If you put a "T" by a whole lot of them, then the test scores you higher on this scale. If you put an "F" by all of them, the test basically scores your "truthfulness on test questions" lower because these are things that everyone should complain about a few of.

    The issue of test validity is a big deal and dealt with in different ways including checking for truthfulness by asking the same thing in a different way in different parts of the test. There are a bunch of these question pairs and there are some set up for consistent answers being "T/T", "T/F", and "F/F". There are also question sequences in the back half of the test designed to detect if the user is just starting to mostly randomly check or barely skim questions. Too high on this and the test is reflected as invalid.

    Gaming the test is not as easy as it might seem at first glance. Some questions can be taken at face value, like "I sometimes think about killing myself". If you check that one "T" along with some other similar questions then you may well be suicidal. However, there are other questions that state mildly negative personality traits that most people have. If you refuse to admit to any of them then the test scores you as either trying to present an unrealistically positive image or as having an unrealistic self-image/ego. Answering some of those type questions with a "T" will get the test to paint you as a self-confident personality with a healthy self-image that feels no need to hide common human foibles.

    Personally, I'm a skeptic of these kinds of tests. I think they may work to some degree in some scenarios with some people but there will be other scenarios or people for which the test will largely fail. This particular test is also susceptible to interpretation error. Some evaluators tend to focus in on individual scales but what I read says that that over-simple approach almost always yields skewed results. To get an accurate scoring the evaluator must consider the scales together. In large scale testing of different populations, the experts in this claim to have identified different groupings, for example two particular scales elevated while a third specific scale is lowered may represent a certain personality trait (ie rebelliousness or conformity). It's also said that the evaluator *must* have accurate background info on the subject (ie record of physical violence, manic behavior, etc). These factors can apparently change the assessment significantly.
         

  • Observations. (Score:3, Interesting)

    by OneSmartFellow ( 716217 ) on Tuesday March 24, 2009 @05:50AM (#27309395)
    1.) It's copyright by the University of Minnesota. Uptight Wankers !
    2.) If it's a pre-requisite for a federal job, it should be issued by the Fed, and therefore in the public domain.
    3.)You're foolish for not obeying the take-down notice.
    4.)You're even more foolish if you don't immediately publish the entire document on Wikileaks.

    Thanks for listening.
  • Your question is a purely legal question. You should be addressing it to your company's lawyer. And you need to provide that lawyer with all the materials.

    If 300 members of Slashdot tell you you're in the right, and they all get modded up to "+5", that doesn't mean you're in the clear.

  • The ones they missed (Score:5, Interesting)

    by Megane ( 129182 ) on Tuesday March 24, 2009 @09:05AM (#27310537)

    By plugging the text of #66 and #67 into Goggle using quotes to get phrase matches:

    1-75 plus some bogus ones [jetcareers.com]

    370 questsions of another version [theteencentre.com]

    1-75 plus 1-130 of the 370 version [lemmingtrail.com]

    (PDF) contains a sampling of about 100 randomly ordered questions [thesociologycenter.com]

    1-75 [fanfiction.net]

    1-566 as VB .asp program source (!) and possibly with "preferred" answers [gendercare.com]

    Enjoy your Streisand Effect!

  • It seems to me that such posting of a limited amount copyrighted material for discussion purposes on a public-interest, non-profit Web site falls within the scope of the fair use exemption of US copyright law.

    Well, it doesn't.

    ""quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported." "

    None of that is what you're doing. Incidentally, the phrase you're really in trouble with is where the court is told explicitly to consider the substantiality of the quotation; you've quoted more than 1/8 of the entire work. Fair use lets you get away with quoting maybe five or six questions in a situation like this, not 75.

    Furthermore, you don't actually get to decline the request while you decide what to do. Declining a takedown is a final stance; if you say no, that's not "no while I figure it out", that's no period. You're supposed to be taking the content down until you're convinced it's legal (which it isn't).

    The only people here who will tell you that what you're doing is fair use are the people who have never read fair use doctrine. Fair use is for criticism and commentary, and is meant to cover the news and the newspapers talking about things. It is not a blanket to excuse you duplicating and disseminating whatever copywritten material you feel like, even if it's "only" nearly 15% of the complete work.

    You're way, way in the wrong here, and you need to call a lawyer and ask, before you get into serious trouble. Slashdot is not a lawyer.

  • USC Title 17 section 512 (Score:3, Insightful)

    by Todd Knarr ( 15451 ) on Tuesday March 24, 2009 @10:43AM (#27311651) Homepage

    USC Title 17 section 512 [cornell.edu] is the relevant part. My thoughts:

    1. Contact a competent attorney specializing in copyright and IP law. Trust only a lawyer working for you, never one working for the other guy. Then follow your lawyer's advice.
    2. 512(c)(3) sets forth the requirements for a valid DMCA takedown notice. One of those requirements, (vi), is for the person sending the notice to state under penalty of perjury that they're authorized by the copyright owner to send this notice. I see the letter they sent you never makes that statement. I'd respond to them noting this deficiency and that until it's corrected you can't take action without opening yourself to legal liability. I wouldn't be confrontational, simply request that they make that statement so that you can act without fear of being held liable yourself by the user and note that you'll be unable to comply with their request until it complies with the law itself. Being non-confrontational will help you if you do have to go before a judge, it'll show him that you're trying to comply with the requirements of the law and that it's NCS Pearson who're balking at doing the same. It'll also help take your own service provider out of the equation by giving them a good reason to refuse to take action. If it's not a valid DMCA takedown, they can't take action against you without leaving themselves possibly liable if the request turns out to be invalid, and gives them an excuse to say "Sorry, the law doesn't let us act until you've satisfied it's requirements.".
    3. Having done the above, if your attorney agrees that you've got a valid argument, give NCS Pearson the benefit of the doubt about the validity of their notice and file a proper counter-notice per 512(g). This also takes your service provider out of the equation. Once they've received your counter-notice they have to cease interfering with access until NCS Pearson notifies them that they've actually filed a legal action against you or risk legal liability themselves. Again, it gives them a legal excuse to butt out of the whole matter. It also raises the bar for NCS Pearson, right now it's cheap for them to send demands but if you counter-notice they're going to have to actually involve a judge and the courts and it's going to get more expensive for them. Right now it's probably running on auto-pilot but once you counter-notice they'll have to decide whether it's going to be worth it to continue.
  • 1. Start a law practice, hang up a shingle.
    2. Advertise that your practice is limited to handling litigations for people who got their legal advice by following the consensus opinion of comments modded "+3" or higher on Slashdot.
    3. ???????
    4. Profit!

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