Abusing DMCA Notices To Take Down Content You Don't Like
from the a-growing-tend? dept
Last year, we wrote about how people were figuring out that they could abuse the DMCA to take down just about any content they don't like -- and apparently the practice is becoming more widespread. Boing Boing notes that Uri Geller has been using the DMCA to take down videos that debunk his "psychic abilities" while Robert Cringely claims that someone (he's not sure who, but it's clearly not the actual copyright holder) has issued a takedown notice of a video of Steve Jobs from Cringely's Triumph of the Nerds documentary. In both cases, it was not the actual copyright holder issuing the takedown notice -- which is illegal. But since the DMCA requires sites to take down content first and ask questions later, the content is quickly removed. This, of course, is not the intended purpose of the DMCA, but since it's apparently so effective, expect to see it happen a lot more frequently.
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I went out of town once and came back to find that some of my content had been down for three weeks. Why? Because someone sent a DMCA notice that I was using their content without permission.
So after three weeks of this content being down (and I have a rather popular and active site, mind you), I had to write and sign an affidavit and send it to my colo provider stating that it was actually my content. Then I had to go find a kinko's store that had a fax machine, may a couple bucks to fax the document and then wait a couple of days for them to restore the content.
A month later, it all started all over again.
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DMCA their takedown cease and desist letter
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Been There and Seen This
A copyright claim was made against my friends site for infringement, the claim was mistaken or malicious, we're not totally sure.
The 'infringing' images were stock images used under non exclusive license by both sites.
However the email from the ISP go lost in the junk mail folder and the site was taken down by the ISP.
It then became hard to convince the ISP to put the site back up, because we'd failed to act in the time allowed and they ended up changing ISPs over this.
The man making the claim then filed a new claim against the new ISP, we filed a counter claim and threatened to sue his ass if he kept filing these false claims. He backed down.
What struck me was that without even stating how he comes to own the images, he was presumed to own the copyright. If he'd had to quote the license to those images, he'd realize he'd bought a non exclusive license to stock images (and so would the ISP who received the DMCA take down claim). The license would also have given him the stock images sites name, so he would have seen they were stock images.
This is a problem with the DMCA, 'presumption of copyright ownership', the assumption that the person making the DMCA claim is telling the truth, and that the person accused is not, without even the slightest evidence that the claimant owns the copyright.
If Uri Geller was required to state the way he owns the copyright, he's think twice about making the false statement.
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Sigh...
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Who to sue
Because there's nothing to win. The DMCA says we can sue for the damage done by the takedown notice (even if mistaken). So a small site, 3 days lost, about $100?? A private citizen with a Youtube video, no measurable loss, $0???
Any fake DMCA abuser can just raise their hands and say 'well I thought I owned the copyright but apparently not'. So the perjury claim is a non starter. This is why I think they should be required to detail how they own the copyright. Because then they lie and it makes the perjury claim much easier to verify and pursue.
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Not enough
Just a thought...
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Re: Who to sue
You may not win damages, per se, but you sure as hell can nail them on the perjury aspect of it. NBD, that group that went after the triumph of the nerds video, had no reason to claim ownership. There should thus be a prison sentence awaiting any British NBD executive involved, the moment they arrive in any area under US jurisdiction.
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