Sour wrote:... I do believe it's unlikely Nintendo would go after a small community that isn't making money out of it (nor blatantly trying to distribute copyrighted works) - they literally have hundreds (if not thousands) of more important targets to take care of (e.g every single rom site on the internet) before Nesdev even comes close to being an issue.
koitsu wrote:... and the third-party companies that Nintendo and others rely on to determine if there are violations start ramping up. And there are several such companies: I had to deal with one when I ran Parodius for a supposed violation. I can tell you the story if you'd like to hear it -- it's highly relevant to what I'm discussing here, because it involved a specific graphic (read: a single graphic consisting of, if I remember correctly, 2 colours) in a homebrew ROM. The site owner opted to remove the ROM immediately and everyone was happy.
Remember: Parodius ran a strict no-ads / no-monetary-income regiment from day one until its closure. Yet the above happened. It had nothing to do with a site making money, it had to do with a hired company doing what they were hired to do. Sure, a larger site obviously will be more likely to get focus (duh), but some of these operations care about even the smallest of things.
My offer to tell the story stands -- and if people don't believe it, they can ask Martin Nielsen, the site owner, who can verify it. It was over a homebrew Atari 2600 title that contained a single 2-colour sprite (possibly animated) that "was in copyright/trademark violation", and came from a well-established copyright infringement "discovery" company -- ironically, located in England -- that a major (triple-A) gaming company relied on for their infringement reporting services. All of Parodius could have been shut down (permanently), Martin and/or myself sued or taken to court (e.g. infringement charges filed), etc. etc. had a) the co-location provider I used not contacted me immediately upon receiving the notice, b) Martin had been out of town/unavailable (i.e. he responded to my Email very quickly), and/or c) had Martin said "no, I'm not going to remove this supposed violation, it's a homebrew".
Sour wrote:Also, doesn't Nesdev technically benefit from safe harbor provisions due to the site's content being posted by its users? So long as DMCA takedowns are promptly taken care of when/if received, I don't think getting sued is really a possibility here. But of course, I am not a lawyer.
The way the real-world process works in the United States is as follows:
1. The content is discovered, often through a third-party investigative service who scours the Internet (using proprietary tools they've created, as well as a lot of manual effort; there are several well-known companies that do this, and most large gaming companies rely on these smaller companies to do it, because who has the time to sit around digging around on Google/Bing/Baidu/Naver for this type of stuff?),
2. This part is important to understand
: the reporter contacts the owner of the IP network responsible for providing network access to the site where the content resides. This may happen recursively, i.e. contact who owns the IP space, followed by the company that owns the larger part of the IP space, followed by the company who owns the even larger part, etc... It's very common to see several CC'd. They often do not
contact Abuse addresses or "owners of the website", they go right for who provides the network access. If the person running the hosting server works at/for the network provider, things can get very dangerous (read: possibly losing your job).
In the case of nesdev, they would start with QWK.net Hosting LLC in Idaho. QWK.net would be required to forward the DMCA notice on to the customer. If no response from either entity, the next phase would be to involve either transit providers of QWK.net, which would include Cogent/PSINet and/or Integra Telecom, informing them of the violation and lack of response from QWK.net and its customer. This may or may not also include attempted contact with local law enforcement to "speed up" the process,
3. The duration of time permitted for response varies, but it's between 24 to 72 hours. The reporter can request whatever duration they wish, but 24-72 seem to be most common. The time permitted for removal
is usually stated within the DMCA takedown notice, but sometimes it can be negotiated assuming the reporter receives some contact from one or more provider(s),
4. If the content is removed within the duration of time, the reporter "makes note" (in a database, etc.) of the violation. If the number within N days exceeds some arbitrary amount (it depends on the client/company who is dictating the rules), it's deemed "high risk" (i.e. likely to recur), and legal action often begins. If the number within N days is below some arbitrary amount, then all is fine/dandy,
5. If the content is not removed within the duration of time, the reporter steps up their game. Sometimes this can include/involve law enforcement, especially if the reporter can manage to find a geographic region that appears accurate. A lot of manual investigation is done in advance, by humans.
That said: in the United States, you can sue for any reason you so wish
. The trick is finding a firm or attorney who is willing to do it. If the claim is ridiculous (frivolous), an attorney won't take it (though some will, assuming they think they can win the case and make some money off of it; it's rarely about justice). But that's the ruse: large behemoth companies have large behemoth firms and legal teams. Those firms/teams rely on several medium-sized companies to "dig up" DMCA violations (that's what they do as a company).
This process isn't new in any way -- it worked very similarly prior to DMCA existing (i.e. to report pirated content, inappropriate content, etc.), although "back then" usually phone calls were made right off the bat. Nowadays Email is the default, with phone calls being secondary or tertiary.