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Philip Smith's summary judgment might be one of the most inspiring cases for bloggers squeezed by dissent corporations, but there's more to the First Amendment

We dodged a bullet this week when a judge favored Philip Smith over BidZirk in a civil case of libel, trademark dilution and invasion of privacy.

Unfortunately Smith's case is just one of many typical of the Corporation v. Blogger cases initiated by companies not happy with a particular statement showing up on a website.  Smith's is unique in the fact that the story played out to summary judgment.

By far, the largest annoyance I deal with is DMCA takedowns.  That's right, the legislation designed to protect starving movie stars from piracy is used against bloggers and journalists with just as much fury. 

For those not familiar with the DMCA, a typical takedown occurs in the following manner:
  • A user posts an MP3 of the new Britney Spears song on his website.
  • Spears' label emails the user with a DMCA takedown notification, informing him that he has 24 hours to remove the MP3 before that user's service provider is contacted requesting the same.
  • The user's host or ISP is contacted.  If the ISP does not remove the content within 24 hours, the second tier ISP is contacted with the same notification.
  • This notification keeps moving up the provider chain until it gets to someone who will kowtow to the demands of the DMCA sender. 
Virtually every ISP I've ever dealt with in the United States will kowtow to a DMCA takedown within minutes of receiving it.  Nevermind that almost no checks and balances exist to determine if the takedown sender is even the copyright holder.

How does this fit in with DailyTech, or Philip Smith for that matter?  The fact that Smith published a copyrighted image gave BidZirk the authority to initiate a DMCA takedown.  Sure, Fair Use comes to mind, but given some of the draconian interpretations of copyright in this country, no service provider is going to risk losing its (literal) backbone to protect the rights of an aspiring blogger.

The rabbit hole extends deeper beyond corporate logos.  You might notice that the last roadmap slide published on DailyTech occurred almost a year ago, after which AMD sent DailyTech a takedown notification claiming all of its slide decks are copyrighted, and subsequently initiated a DMCA takedown on all AMD roadmap articles.

It's a no-win situation for the young writer.  Publish or die, as they say, but for God's sake don't publish anything other than complacent text lest you risk litigation or takedown. 

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AMD shot themselves in the foot.
By jiteo on 11/3/2007 9:47:01 PM , Rating: 3
They basically requested you take down free publicity. Smrt.




RE: AMD shot themselves in the foot.
By Pythias on 11/3/2007 11:50:16 PM , Rating: 2
I was about to say (type) the same thing. You'd think that this manufacturer would take all the free advertisement it could get.

Maybe they felt the article in question was too critical of them?


RE: AMD shot themselves in the foot.
By KristopherKubicki (blog) on 11/3/2007 11:53:02 PM , Rating: 2
This was in the Summer of last year. It specifically revolved around the pricing and roadmap leaks for desktop processors.


RE: AMD shot themselves in the foot.
By drebo on 11/5/2007 9:57:03 AM , Rating: 2
I can understand AMD's want to keep those particular slides off the net. What'll happen is that people will see future price breaks and stop buying now. This impacts retailers and distributors which impacts AMD. Retailers and distributors are left with many processors they paid too much for and then return them. It goes up the chain, back to AMD, and AMD now has to sell them at the lower prices, or issue credits to those customers.

I don't agree with using the DMCA to take them down, but I do understand why AMD would have wanted them down.


By Anh Huynh on 11/5/2007 3:21:38 PM , Rating: 2
Ah yes, I remember that. All it did was make us make us copy their roadmap to our template or put the price lists in an easier read table within the article.....


By mindless1 on 11/5/2007 6:06:11 PM , Rating: 2
I would imagine it's more about policy. These particular roadmaps were already out in the wild, but at some point they need to establish and make known the policy that they do not want their internal marketing plans revealed too soon else it could put them at a disadvantage due to it. On the 'net, 24 hours is a long time, but if they make their position known it is bound to make at least some people think twice before posting certain information. Not that it's right or wrong to post it I make no judgement there but if my company had a business strategy for the next couple years I would feel the competition should be left in the dark about it as long as possible, no?


By Proteusza on 11/5/2007 5:30:11 PM , Rating: 2
I've been an AMD user for years, but while their processor design is generally good, their marketing is bad to non existant.

They did shoot themselves in the foot, and whats more they get people angry with them. A little leak now and then is good at getting people excited about your products, you would think AMD would know that. Rather, they seem to go with old Draconian measures of control - control that information, squeeze it tight, because it would be "bad" if our customers knew what products we are going to bring out.

Say what you will about Intel and their illegal dealings in the past - they market themselves extremely well. Look how they cunningly paid for Anandtech - brilliant exposure.


RIP Fair Use
By JasonMick (blog) on 11/2/2007 6:02:31 PM , Rating: 5
You served us so well.

Its funny how a country can have so many contradictory laws. =P




AMD & DMCA
By crystal clear on 11/4/2007 6:51:12 AM , Rating: 2
Some quotes-

"Once again, content owners have successfully promoted their own narrow financial interests over the broader public interest in preserving consumer access to literary, scientific, and other works,"

--Peter Jaszi, Professor at American University's Washington College of Law.


"Beware of he who would restrict you from information, for in his heart
he dreams himself your master"

--Alpha Centauri




What about net neutrality ?
By crystal clear on 11/3/2007 9:59:05 AM , Rating: 1
You cetainly tackle some very important issues, I would add to this the issue of net neutrality .

Several federal agencies that might be charged with implementing network neutrality laws have already made their stances clear, though. The FTC has weighed in with its opinion on network neutrality ("No"), and the Department of Justice wrote a less-than-convincing position paper of its own that came to the same conclusion, but in stronger terms ("Hell, no!"). The FCC is still looking into the issue.


Once thought dead, net neutrality roars back to center stage

http://arstechnica.com/news.ars/post/20071029-once...




"If you look at the last five years, if you look at what major innovations have occurred in computing technology, every single one of them came from AMD. Not a single innovation came from Intel." -- AMD CEO Hector Ruiz in 2007

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