Massive Research Report On 'Piracy' In Emerging Economies Released; Debunks Entire Foundation Of US Foreign IP Policy

Fox Sends DMCA Takedown To Google To Remove Link To DMCA Takedown Sent By Fox

from the got-that? dept

Tue, Mar 8th 2011 11:33am — Mike Masnick

Ah, meta DMCA takedowns. We just recently noted the growing trend of some DMCA notice filers to claim that the notices themselves are covered by copyright and thus should not be sent on to ChillingEffects.org, the clearinghouse for DMCA takedowns. It's highly questionable whether or not such DMCA notices are actually covered by copyright, but we hadn't seen anyone actually challenge the claims. However, TorrentFreak has an article on a slightly different, but related situation, where it appears that Fox sent a DMCA takedown to Google, ordering it to block links to a DMCA takedown Fox had sent Google earlier.

That may be confusing, so we'll go through this slowly. Basically, Fox sent Google an initial DMCA takedown, to get it to stop linking to links to unauthorized copies of the movie Avatar. Fair enough. Google, as it does, forwarded this takedown to ChillingEffects and removed the links in its index. However, then Fox apparently sent another DMCA takedown, demanding that Google take down the link to its original takedown in ChillingEffects. The second takedown has a huge list of links that it wants Google to stop linking to, so the ChillingEffects one is buried in there.

However, I have to wonder if that's a legit DMCA takedown. The only way it's legit is if Fox really does have some copyright claim over the original DMCA takedown notice, and that's iffy, at best. Of course, Google is pretty quick to takedown these links in order to retain its safe harbors. However, I do wonder if the folks at ChillingEffects, who certainly understand the law, will decide to pushback on this one.

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Filed Under: chilling effects, copyright, dmca, search results, takedown
Companies: fox, google

56 Comments

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thublihnk (profile), 8 Mar 2011 @ 11:05am

Insiders say there's a third DMCA takedown notice from FOX for this article.

Also, I just got a takedown notice in my inbox for this comment.
[ link to this | view in thread ]
The eejit (profile), 8 Mar 2011 @ 11:18am

Re:
And you sent me one for that DMCA takedown notice that doesn't exist, as well.
[ link to this | view in thread ]
David Liu (profile), 8 Mar 2011 @ 11:36am

Re: Re:
Don't worry guys, soon enough there'll be a DMCA takedown to the entire world saying that we need to take down all knowledge of this ever happening from our minds.
[ link to this | view in thread ]
Anonymouse, 8 Mar 2011 @ 11:41am

Knowledge of what happening?
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 11:43am

the exponential growth of takedown notices will soon cover the earth in a sea of paper!
[ link to this | view in thread ]
Dick (profile), 8 Mar 2011 @ 11:46am

Re:
I just found my new business. Making paper.
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 11:57am

Re: Re:
DMCA are digital, who send paper anymore? You need to patent e-mail and then start trolling everyone
[ link to this | view in thread ]
shoutingloudly (profile), 8 Mar 2011 @ 11:57am

They do have copyright in the takedown notice. It's a creative work fixed in a tangible medium. However, as both Fox and ChillingEffects lawyers certainly know very well, this is a classic example of fair use.
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 11:59am

In most cases, the proposition that a DMCA takedown letter is protected by copyright is not "iffy at best." You really don't need much original expression at all to get copyright protection. If the letter has a logo on it, that's probably copyright protected.

A closer question is whether anything done by chillingeffects.com is actually infringing.
[ link to this | view in thread ]
chris (profile), 8 Mar 2011 @ 12:04pm

in before yo dawg!
i heard you like DMCA take down notices so we sent you a DMCA take down notice on your DMCA take down notice so you can remove our content while you remove our content.

also in before philosoraptor:
if you send a DMCA take down on a DMCA take down, does that mean a DMCA take down notice is protected content?

or, if if you send a DMCA take down on a DMCA take down, does that take down the original DMCA take down?
[ link to this | view in thread ]
iamtheky (profile), 8 Mar 2011 @ 12:08pm

Dear Google
Why not just hire ChillingEffects.org to be a web based electronic delivery service for your DMCA notices. Thus making it a requirement of their job to post and bring and awareness to your DMCA notice.

Or a link that reads it aloud. I suppose the "reading aloud" crackdown is next though.
[ link to this | view in thread ]
HothMonster, 8 Mar 2011 @ 12:08pm

I kinda see why they don't like chilling effects
or these takedown notices being public because if I cared to watch Avatar that takedown notice you link to gives me over 100 links to try out.
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 12:09pm

Things such as this just piss me off. I find it hard to believe that we've really allowed career politicians to draft legislation after legislation after legislation that brings about situations like this. When you begin to see redundancy of this nature it's a sure sign the system if flawed. What makes it worse is that impotency I feel not being able to change a damn bit of it.

No wonder revolutions always turn violent when the "rebels" don't have the means to play the game "by the book."
[ link to this | view in thread ]
ChurchHatesTucker (profile), 8 Mar 2011 @ 12:12pm

Re:
Legal boilerplate is really stretching 'creative work.'

Although I'd love for lawyers to have to come up with unique expressions of any argument they make, or face civil and criminal liability.
[ link to this | view in thread ]
Mojo, 8 Mar 2011 @ 12:15pm

I think we should all join in an experiment - let's all file DMCA takedown notices for random works that we have no ownership over just to show how easy it is for people to abuse this power.

The winner is whomever gets the "biggest" work taken down (aka claiming to own Star Wars), better yet let's claim ownership of works that are in the public domain.
[ link to this | view in thread ]
Gwiz (profile), 8 Mar 2011 @ 12:18pm

Re: in before yo dawg!
In related news:

Twentieth Century Fox Film Corporation disappears from face of the earth. Random witnesses reported seeing a very large logic wormhole appearing just prior to their disappearance. Story at 11:00.
[ link to this | view in thread ]
CommonSense (profile), 8 Mar 2011 @ 12:18pm

Re: Re:
Dunder Mifflin is back in business baby!!!
[ link to this | view in thread ]
Qritiqal (profile), 8 Mar 2011 @ 12:27pm

Re: Re: Re:
Of what happening? What the heck are you guys talking about? The "article" and all the comments up to here are blank. In fact, the comment I was responding to just disappeared... Wait, where am I???
[ link to this | view in thread ]
Marcus Carab (profile), 8 Mar 2011 @ 12:35pm

Re: I kinda see why they don't like chilling effects
Finding a source has never really been much of an obstacle...
[ link to this | view in thread ]
el_segfaulto (profile), 8 Mar 2011 @ 12:36pm

Re: Re: in before yo dawg!
Twentieth Century Fox Film Corporation disappears from face of the earth...
And nothing of value was lost.
[ link to this | view in thread ]
cseiter (profile), 8 Mar 2011 @ 12:43pm

Re: Re: Re: Re:
Inception 2: Google vs. Fox.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 8 Mar 2011 @ 12:47pm

Re: Re:
DH could make a boatload hiring himself out for that.
[ link to this | view in thread ]
HothMonster, 8 Mar 2011 @ 12:49pm

Re: Re: I kinda see why they don't like chilling effects
Oh I agree those of us with sources have sources but it does kind of defeat the purpose of taking links down when in doing so you are putting up a list of all the links you don't want people to look at.
[ link to this | view in thread ]
cseiter (profile), 8 Mar 2011 @ 12:56pm

Re:
I own TechDirt!
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 12:56pm

Re: Re: Re:
"A method of sending a digital version of a paper document" seems broad enough and with prior art so it should be approved in thy USPTO right away.
[ link to this | view in thread ]
cseiter (profile), 8 Mar 2011 @ 12:57pm

Re: Re:
Crap. And techdirt too!
[ link to this | view in thread ]
Bas Grasmayer (profile), 8 Mar 2011 @ 1:02pm

I would love to publish a DMCA takedown notice for a DMCA takedown notice... just to bait another DMCA takedown notice, which I would then publish.
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 1:11pm

Re:
I assume this is said in jest, but FYI, in order for a DMCA takedown notice to satisfy statutory requirements, you have to sign under penalty of perjury that you believe you own the work or are acting on behalf of the owner and the other work is infringing.

I think perjury can get you up to five years in prison.
[ link to this | view in thread ]
Jackie, 8 Mar 2011 @ 1:11pm

DMCA Takedown
An item isn't copyright if it's only the information contained in a document. A letter sent to someone to inform them of a fact has no implicit copyright. It has no creative element to be protected.

An item isn't copyright if it is a legal document because a legal document is 1. published by being sent or served and 2. it is not being re-published but it's existence is being established by a link. In this case it is simply being exhibited. As such, links to it would come under fair use law.

Fox is just creating another version of a SLAMM lawsuit. They know their reputation is to be the A********** of creation and it is in their very nature to continue being so.
[ link to this | view in thread ]
chris (profile), 8 Mar 2011 @ 1:14pm

Re: Re: in before yo dawg!
and not a single fuck was given that day.
[ link to this | view in thread ]
blah, 8 Mar 2011 @ 1:24pm

Because the DMCA notice contains the links to the content
The ironic part is - now people can visit chilling effects to find a good link to a known-pirated copy of Avatar:

http://chillingeffects.org/dmca512c/notice.cgi?NoticeID=31773
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 1:54pm

the more they do this, the less powerful and more meaningless DMCA will become.
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 2:26pm

Re: DMCA Takedown
I have a hard time understanding what you're trying to say, but all the DMCA letters I've actually seen contain enough "originality" to be protected by copyright. The bar is extremely low.

As far as "legal documents" again I have trouble understanding what you're saying, but something does not lose copyright protection simply by virtue of being a "legal document."

I do, however, think chilling effects has a strong fair use argument.
[ link to this | view in thread ]
Chargone (profile), 8 Mar 2011 @ 2:46pm

Re:
given the people who send these types of notices in the first place would often be willing to claim that breathing at the same pitch as some singer who once did an cover song for an advertisement for them was infringing and regularly claim fair use doesn't exist...

i think the first question's more useful, in a 'vaguely associated with reality' sort of way...

legally speaking is an entirely different story mind you.
[ link to this | view in thread ]
Chargone (profile), 8 Mar 2011 @ 2:47pm

Re: Re: Re: in before yo dawg!
added value get!
[ link to this | view in thread ]
Chargone (profile), 8 Mar 2011 @ 2:49pm

Re: Re:
uh-huh.

and all those corporate lawyer types who get content issued by their company, all authorized and the like, taken down on DMCA grounds... (we've had stories of this happening), they're in jail now, right?

yeeeeeeeeeah, that's what i thought.
[ link to this | view in thread ]
Chargone (profile), 8 Mar 2011 @ 2:51pm

Re:
grip.. tightening... systems... slipping through fingers...
[ link to this | view in thread ]
Divide By Zero, 8 Mar 2011 @ 2:51pm

Talk about the snake eating its own tail...
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 2:54pm

Re: Re: Re:
There's a difference between a good faith belief based on a mistake (which may or may not apply in those scenarios) and intentionally lying.

Maybe those folks did have a good faith belief but were mistaken, or maybe they didn't. At any rate, it would be harder to prove a criminal charge against them than it would be against someone claiming to own Star Wars.
[ link to this | view in thread ]
Steve R. (profile), 8 Mar 2011 @ 3:14pm

Re: Re: DMCA Takedown
"...but all the DMCA letters I've actually seen contain enough "originality" to be protected by copyright. ... "

The assertion that DMCA letter is "protected" by copyright should be immediately dismissed under both "fair use" and the First Amendment. Give me a break, the local bully picks on you and you are prevented from protecting yourself!! That is an absurd proposition.

Not only that, but lets consider the DMCA notice as a "gift". As a gift, the issuer of the DMCA notice gives up all rights to the content. After all, the DMCA notice is not something that you requested. If not requested why should you be bound by its demands?
[ link to this | view in thread ]
jayflatiron, 8 Mar 2011 @ 3:16pm

Notice
You are herby notified that "DMCA" and more specifically "DMCA takedown" are copyrighted terms that you are using in violation of the Digital Millenium Copyright Act. You are ordered to remove all references to the above named Thing About the Thing that Covers Stuff, or TATCS, which is also a copyrighted term. As counsel to the injured I will be sending you settlement letters before contacting a judge, which is my copyrighted method.

Sincerely,
Evan Stone
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 3:26pm

Re: Re: Re: DMCA Takedown
Fair use has nothing to do with whether a work is protected by copyright. Rather, it has to do with the scope of that protection, and whether a particular use of a protected work is infringing.
[ link to this | view in thread ]
trilobug, 8 Mar 2011 @ 3:43pm

But if Fox sent the original DMCA then sent another to...oh god my eyes have crossed.
[ link to this | view in thread ]
Almost Anonymous (profile), 8 Mar 2011 @ 3:58pm

Re: DMCA Takedown
Creative element achieved:

I RITE AS ATTORNEY 4 XYZ CORPORASHUN.

AS U R, NO DOUBT, AWARE, XYZ OWNS ALL OV TEH RITES 2 (STUFFS WE THEENK U STEALIN FROM US) AN ALL RITES RELATIN THERETO (COLLECTIVELY "OUR PROPERTIEZ"). THEES RITES R PROTECTD BY NUMEROUS COPYRITES TRADEMARKZ IN BOTH TEH PROGRAMS THEMSELVEZ AN TEH CHARACTERS, SETS, AN OTHR ELEMENTS APPEARIN IN DOSE PROGRAMS.

WE HAS RESENTLY LERND DAT U HAS POSTD VARIOUS ELEMENTS OV OUR PROPERTIEZ ON UR SIET AT www.BUNCHAMEANSTEALERS.COM. UR POSTIN OV THEES ITEMS IZ AN INFRINGEMENT OV XYZ'S RITES IN OUR PROPERTIEZ.

BASD UPON TEH FOREGOIN, WE HEREBY DEMAND DAT UR CONFIRM 2 US IN WRITIN WITHIN 10 DAIS OV RECEIPT OV DIS LETTR DAT: (I) U HAS REMOVD ALL INFRINGIN MATERIALS FRUM UR SIET; AN (II) U WILL REFRAIN FRUM POSTIN ANY SIMILAR INFRINGIN MATERIAL ON TEH INTERNET OR ANY OTHR ON-LINE SERVICE IN DA FUCHUR.

TEH FOREGOIN IZ WITHOUT WAIVR OV ANY AN ALL RITES OV XYZ CORPORASHUN, ALL OV WHICH R EXPRESLY RESERVD HEREIN.

VRY TRULY YOURS,
ATTORNEY

P.S. DONT TELL NOONE BOUT DIS LETTER OR ELSE
[ link to this | view in thread ]
Ron Rezendes (profile), 8 Mar 2011 @ 4:14pm

Re: Re:
Well how the hell is ICE getting entire sites taken down?

Who signed that paperwork?

Why aren't they facing justice?

84,000 sites seems like quite a pile of perjury.
[ link to this | view in thread ]
m, 8 Mar 2011 @ 4:59pm

Must be a right-wing thing. I just got a DMCA notice from a righty who smears people all over the Internet, but cries to attorneys when I repost her smears on my political forum. Apparently, her smears are "copyrighted." See: http://www.sheboyco.com/vb/showthread.php?t=4714
[ link to this | view in thread ]
athe, 8 Mar 2011 @ 5:10pm

Re: Re: Re: I kinda see why they don't like chilling effects
But if the recipient is complying with the DMCA notice, then those links will be gone anyway...
[ link to this | view in thread ]
abc gum, 8 Mar 2011 @ 5:57pm

Re:
"If the letter has a logo on it, that's probably copyright protected."

You may be confused about what trademarks are.
[ link to this | view in thread ]
abc gum, 8 Mar 2011 @ 6:01pm

Re: Re: Re: Re:
Herp Derp
[ link to this | view in thread ]
abc gum, 8 Mar 2011 @ 6:09pm

Re: Re: DMCA Takedown
Seems you lack simple understanding.
[ link to this | view in thread ]
TechDan (profile), 8 Mar 2011 @ 8:20pm

Re: Re: Re: Re: Re:
We Have to go deeper!!

http://inception.davepedu.com/
[ link to this | view in thread ]
LRN, 8 Mar 2011 @ 10:12pm

IF the DMCA letter is hosted on Chilling Effects, why is it Google who get the new DMCA takedown notice? That would mean that it's not the DMCA letter itself, but the *links* on Google's pages that are infringing. Those links are Google's own, not something they host for someone else, so I wonder if safe harbour matters at all. It would be Google themselves who would need to file counter-claims against the second DMCA notice, not a third-party (and not Chilling Effects), so it seems that a DMCA takedown isn't the correct approach here.

Then again, IANAL.
[ link to this | view in thread ]
Midnight_Voice (profile), 10 Mar 2011 @ 4:46am

That takedown letter refers to a 'television series', not a movie.

Doesn't that invalidate it as a proper instrument of law?

At the very least, it reveals it to be from boilerplate, and not the original work it would need to be for even the most dubious DMCA claim to get a toehold.
[ link to this | view in thread ]
nasch (profile), 10 Mar 2011 @ 6:35am

Re:
The original DMCA request was to Google for a link as well, not against the actual content.
[ link to this | view in thread ]
btr1701 (profile), 10 Mar 2011 @ 11:20am

Re: Re:
> I just found my new business. Making paper.

Dunder-Mifflin is hiring.
[ link to this | view in thread ]
Anonymous Coward, 6 Mar 2012 @ 12:48pm

Re: Re:
Nobody has ever actually been prosecuted for a false DMCA notice, so have at it.
[ link to this | view in thread ]