Bogus Infringement Takedowns And The Danger Of Relying On Third Party Services With No Backbone

from the sad dept

Thu, Apr 28th 2011 2:33pm — Mike Masnick

We've discussed in the past how the DMCA notice-and-takedown process could be deemed a First Amendment issue, in that it involves government pressure to block speech prior to any hearing -- in fact, just on the say so of an individual. That's because the way it works is that if a service provider receives a DMCA takedown notice, they either have to take that content down, or face liability themselves. Nearly all service providers take the liability-minimizing position of simply taking down the content. Some go even further and take down entire accounts. It's a massive overreaction, but it's a lot easier than actually figuring out what's going on and the law encourages that.

This is becoming a bigger and bigger problem lately, as more and more people and companies rely on third party service providers for what they do. New social services are popping up left and right and becoming quite popular: Facebook, Tumblr, Twitter and others -- and unlike a blog where you can host it on your own server and (hopefully) find a service provider who doesn't easily fold, these services require you to keep the content on their servers and they often seem less willing to hear people out.

Today, we have two separate examples of this, both involving "big" names, which is really the only reason they're getting attention. Were it to happen to less well known names, their content would likely just have been stifled.

First up, we have our friends over at Ars Technica, who had their Facebook account taken down due to a vague complaint of copyright infringement. No real details. No clue who filed the complaint. No notice. And the entire account locked down:

Prior to the account lockout, we had received no notices of infringement or warnings. Truly, we awoke to find that Facebook had summoned a judge, jury, and executioner and carried out its swift brand of McJustice all without bothering to let us know that there was even a problem.

Further investigation has revealed just how flawed Facebook's infringement reporting system is. To begin with, someone making a complaint can provide any third-party e-mail address they choose. So it is rather easy to spoof the origin of a complaint, while giving Facebook and the accused no chance for a direct rejoinder.

The Ars crew is now highlighting how big a problem this is on Facebook, and how ill-prepared Facebook appears to be at handling counternotices or complaints about all of this:

"I have had this happen twice now. I am a professional photographer and I have been using Facebook to increase my business. This has been working great so far. The first time, I was the only admin of the fan page and my account got suspended (for what reason, I still do not know). And thus, my fan page was automatically assigned to some random 'fan' of the page. Of course they renamed it and stole all of my fans.

When contacting Facebook to try and get my main account reinstated and my fan page back, (7 total emails spanning a 2 week time) I got no response at all. My network had been crushed and I had to start from scratch."

Apparently, this has been an ongoing issue for a number of websites, including Neowin, which has had its Facebook page taken down multiple times due to a bogus complaint. In that case, it's even more ridiculous as Facebook claims the only way to fix it, is if Neowin can convince the person who filed the original notice to change his mind.

Next up, we have Danah Boyd, who is well known for her research and insightful writings into internet culture and social media. Apparently she had a Tumblr account under the name Zephoria, the online name that she has used for over a dozen years. Yet, a few years ago, some marketing consultants, who have nothing to do with Boyd, started a company called Zephoria and have been apparently trying to push Danah out of her online persona. The company apparently filed a trademark claim with Tumblr, who simply handed her Tumblr account over to the company and changed her account to some other name without her approval. Tumblr claims it contacted her, but gave her very short notice and she apparently did not see the note in time.

Thanks to her going public about the issue, Tumblr has apologized and reverted the mistake, and, I imagine, someone inside Facebook is scrambling to do the same thing for Ars Technica as well. But, this is a really big problem that is impacting more and more people and it's only going to continue. Part of the problem is the absolutely ridiculous way Congress and the courts have increased third party liability, such that these service providers feel that as soon as anyone says something, they need to totally kill accounts. It's a systematic way to use intellectual property claims to stifle and censor speech. It's a huge problem that's only going to get worse.

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Filed Under: ars technica, copyright, danah boyd, liability, neowin, takedowns, third parties, trademark

42 Comments

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Mike C. (profile), 28 Apr 2011 @ 2:08pm

The evil side of me...
... wants to set up a business to submit fake DMCA notices for each and every online presence I can find that's tied to either the RIAA or the MPAA.

Unlike the MAFIAA, though, I have morals... so I won't be filing false claims anytime soon.
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Brett Abbott, 28 Apr 2011 @ 2:51pm

Two Systems
An obvious problem is the two systems of justice at work, one for well connected like Ars Technica, and one for the proles. Ars will get its page back, the proles will talk to the hand.
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Steven (profile), 28 Apr 2011 @ 2:53pm

Facebook has their automated DMCA request page here:

http://www.facebook.com/legal/copyright.php?copyright_notice=1

No login required. You have to fill out some basic information and identify the infringing material, but there doesn't seem to be any verification of who you are (I don't plan to submit one just for the hell of it)

Seems like it would be pretty easy to anonymously mass submit false DMCA notices and really screw with people.

I'm sure that never gets abused.
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Anonymous Coward, 28 Apr 2011 @ 2:57pm

>>I imagine, someone inside Facebook is scrambling to do the same thing for Ars Technica as well.

I was following along in the Ars blog. It doesn't look like anyone at Facebook is scrambling to do anything, even though FB is getting a ton of bad press.
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PaxSkeptica, 28 Apr 2011 @ 3:00pm

Response to: Steven on Apr 28th, 2011 @ 2:53pm
I could imagine a protest involving DMCA takedown requests for Facebook related content being anonymously submitted en masse through that form.
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The eejit (profile), 28 Apr 2011 @ 3:06pm

Re:
Eh, Zuckerberg has his kajiggers, he doesn't care anymore.
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SUNWARD (profile), 28 Apr 2011 @ 3:14pm

don't rely on others
use other services such as facebook, youtube, tunblr, and everything else as secondary accounts.

Drive all traffic to your own website that you have more control over.
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RobShaver (profile), 28 Apr 2011 @ 3:24pm

Re: The evil side of me...
Apparently they don't have to be DMCA notices if the "vague complaint of copyright infringement" statement is true.
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RobShaver (profile), 28 Apr 2011 @ 3:30pm

I don't understand why ...
I don't understand why people use services like this. They are too big to be responsive, they have all your data/fan info under their thumb and they seldom let you get at it in a meaningful way.

But when your ISP or credit card company starts cutting you off for nebulous reasons, it's even harder to deal with. The internet is supposed to route around outages, but we've seen that this doesn't always work well.
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B's Opinion Only (profile), 28 Apr 2011 @ 3:44pm

How stupid do you have to be to accept any sort of legal communication by email? Would you take down a site based on a Post-It Note� stuck on your door, because they are about as secure as email.

When someone emails our organization with anything containing legaleese, DCMA, Etc, the mail server politely responds "It looks like this email contains material of a legal nature (relating to laws, trademarks, copyrights). Your email has NOT been delivered and is being returned to you because communications of this nature are not appropriate for an insecure medium such as email. If you have a legitimate concern please forward hand-signed documents by courier or registered mail. Thank you. Please be advised that your email WILL NOT be delivered"

If ISPs didn't make it so easy for people to abuse them they would make life much easier for everyone.
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Anonymous Coward, 28 Apr 2011 @ 3:59pm

Here's an easy way to tell you who you can't trust
Are they spammers?

In the case of Facebook: yes. Therefore they cannot be trusted to do anything, other than act in whatever fashion will maximize their profits. In this instance, simply giving in to the demand is the best way to do that, because *even if* it blows up, they can fabricate a fake apology, claim that they're "studying the issue", and sweep the whole thing under the carpet in a month or two. So it's worth the risk of temporary bad PR.

You simply can't rely on people who make lying an essential part of their business model.
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Anonymous Poster, 28 Apr 2011 @ 4:14pm

Re: Response to: Steven on Apr 28th, 2011 @ 2:53pm
Fire up the proxies and ARM THE ORBITAL ION CANNON.
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Anonymous Coward, 28 Apr 2011 @ 4:44pm

I wonder how effective social justice would be in this case. If activists systematically and consistently used these measures to harry both policymakers and the employees and executives of companies that go along with things like this, barraging them with takedowns any time they stick their noses out online, how long would it be before the matter really entered the public consciousness?
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Anonymous Coward, 28 Apr 2011 @ 4:58pm

With all of these false DMCA filings we've seen over the past few years, why has no one been prosecuted for perjury. After all, this shouldn't required a civil case between parties. Perjury is a criminal offense. This one is already set up to be prosecuted using tax payer dollars.
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Joe Harkins, 28 Apr 2011 @ 5:26pm

Maybe my perception is skewed. I am both a published writer whose work has been illegally copied and posted on web sites for profit not shared with me - and I own one of the oldest hosting companies around (about 15 years old) as a result of which I am both very supportive of the DMCA protection and well aware of the legal requirements for a conforming DMCA takedown notice.

The situations described in such statements as "To begin with, someone making a complaint can provide any third-party e-mail address they choose. So it is rather easy to spoof the origin of a complaint, while giving Facebook and the accused no chance for a direct rejoinder" have nothing to do with DMCA, no matter who claims otherwise. The law is very explicit as to the elements of a conforming notice that must be honored. It is very specific as to the p[roofs required. It is very specific as to the penalties for all involved, including the filer of a false claim. Any claim of copyright violation involving DMCA takedown that does not conform (I keep using that word because it is the legal language of the law) does not have to be honored or even acknowledged.

If you read the law, it is plain that an email complaint of any kind is not conforming and need not be honored or even acknowledged. The sky is not falling.

On the other hand, and by clear implication, any takedown that is not supported by a conforming notice is done at the risk of the host that takes down the material.

As a writer I have used DMCA to take down my work posted by thieves. So far, as a host, I have never had to deal with a non-conforming notice of violation but when the day comes, I will reject such a complaint, and I am not afraid of any legal consequences. Maybe I am not well informed, but so far I have never heard of any hosting company having legal problems arising from failure to honor a non-conforming notice of copyright violation.

Further, the suggestion that a owner of a web site or a FB page has no legal recourse to a takedown notice is greatly mistaken. The hosting company is required, again as spelled out in plain language in the law, to put back the material when the site owner files a conforming challenge, something very easy to do.
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Gwiz (profile), 28 Apr 2011 @ 7:23pm

...Facebook had summoned a judge, jury, and executioner and carried out its swift brand of McJustice...

Excellent turn of phrase there.

Props to whomever wrote that.
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Anonymous Coward, 28 Apr 2011 @ 8:41pm

According to IP maximists, no two people can have the same name, ever. It will cause so much confusion that no one will be able to uniquely identify anyone.

Yet, at school, at work, etc... I've bumped into people with the same first name as me. Heck, there are people with the same first and last names. Yet, somehow, someway, the world manages not to come to an end and things continue.
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FUDbuster (profile), 28 Apr 2011 @ 8:53pm

Re:
The hosting company is required, again as spelled out in plain language in the law, to put back the material when the site owner files a conforming challenge, something very easy to do.

Does facebook have a page with a form where you can fill out a counternotice with ease? I didn't get the idea they did from reading the article on ars.

I think the real problem is that facebook locks out your account rather than just taking down the content in question and giving you notice of what happened.
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FUDbuster (profile), 28 Apr 2011 @ 9:02pm

Part of the problem is the absolutely ridiculous way Congress and the courts have increased third party liability, such that these service providers feel that as soon as anyone says something, they need to totally kill accounts. It's a systematic way to use intellectual property claims to stifle and censor speech. It's a huge problem that's only going to get worse.

That's a bit dramatic. Not sure the issue needs to be stretched out as a condemnation of IP in general. There's always going to be some fool that causes problems for others. Make the right phone call, and you get a SWAT team to kick in someone's door. Does that mean law enforcement is a huge problem? You can order 20 pizzas to someone's house. Does that mean the restaurant industry is about to supernova? Seems like you're just looking for any reason to slam IP, no matter how tenuous the argument may be. To be honest, it's been bordering on desperation lately. There isn't much that you don't jump at the opportunity to cry "censorship" about. Yes, facebook's policy is dumb. That doesn't mean the IP sky is falling and the First Amendment is being used as toilet paper. Give me a break.
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VMax, 28 Apr 2011 @ 9:23pm

Re:
Sir,
The word is not "thieves". A thief takes your property, and keeps it out of your control. If you still have control of the original, it is not theft. I don't appreciate un-authorized copying, but it is not theft. Please try to be more succinct in your terms.
Thank you.
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Anonymous Coward, 28 Apr 2011 @ 9:28pm

Re:
"That's a bit dramatic."

Not nearly as dramatic as the potential infringement damages that one could face. Not nearly as dramatic as the attempts by IP maximists to persuade our government to stop all potential infringement. Not nearly as dramatic as the governments attempts to stop infringement.

"Not sure the issue needs to be stretched out as a condemnation of IP in general."

Maybe that's not what's being done in this particular OP.

"There's always going to be some fool that causes problems for others."

There is a difference between someone who causes problems for others and a legal system that encourages people to cause problems for others. The legal system is supposed to prevent people from causing problems for others, not encourage it. Perhaps what's in order here are potentially stronger anti-Slapp penalties for people who try to incorrectly use our legal system for the wrong reasons, instead of laws that encourage the misuse of our legal system.

"Make the right phone call, and you get a SWAT team to kick in someone's door. "

The point is that we should have a legal system that strongly discourages this sort of behavior when it's wrongfully done. If it's wrongfully done, perhaps there should be larger penalties. Our legal system should sufficiently discourage this sort of behavior. and if it's not sufficiently discouraging this sort of behavior, if the behavior continues, then maybe our legal system needs tweaking.

"Does that mean law enforcement is a huge problem?"

When it wrongfully happens it should be pointed out. Maybe that's what's being done here.

"You can order 20 pizzas to someone's house."

and someone could get hit by a car. That's no excuse for us to have a legal system that encourages abusive behavior.

"Does that mean the restaurant industry is about to supernova?"

Who said otherwise?

"Seems like you're just looking for any reason to slam IP"

If there were no reasons to slam IP then looking for a reason shouldn't turn up anything. But there are many good reasons to slam IP and he is just pointing them out.

"To be honest, it's been bordering on desperation lately."

No it hasn't.

"There isn't much that you don't jump at the opportunity to cry "censorship" about."

If the shoe fits.

"Yes, facebook's policy is dumb."

The question that's being considered here is, to what extent is their 'dumb' policy encouraged by a broken legal system.

"That doesn't mean the IP sky is falling and the First Amendment is being used as toilet paper."

IP maximists are the ones who claim the sky will fall without IP. They're the ones who claim the sky will fall if copy protection lengths don't keep getting extended. They're the ones who claim the sky will fall if infringement damages aren't insanely high. They're the ones who claim the sky will fall is piracy isn't stopped. Give me a break.
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Anonymous Coward, 29 Apr 2011 @ 12:12am

Re:
"To be honest, it's been bordering on desperation lately"

I notice that IP maximists don't seem to comment much on threads like these, among others.
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The eejit (profile), 29 Apr 2011 @ 1:19am

Re:
No, Mike slams bad IP laws. Like the one about Life+70, oir 95 years, whichever is the longer. OR the notice-and-takedown system, rather than a notice-and-counternotice system. OR the one where infringement damages are punitive in level, rather than reparative. OR where everything is attempted to be done in a shadowy area in order to bully your rulers into doing ONE INDUSTRY'S bidding.
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Blatant Coward (profile), 29 Apr 2011 @ 3:04am

"We have invested significant resources into creating a dedicated team that uses specialized tools, systems and technology to review and properly handle intellectual property notices."

We won't actually tell you how to reach this team as piteous cries for mercy or for us to deliver what we promised-a website you modify-are distracting to them.
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PaulT (profile), 29 Apr 2011 @ 5:17am

Re: Here's an easy way to tell you who you can't trust
"Are they spammers?

In the case of Facebook: yes."

Erm, I'm not denying that they have some issues of trust, but how the hell are they spammers? I don't think I've ever received an email from them that wasn't solicited.
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Anonymous Coward, 29 Apr 2011 @ 5:34am

Based on the Ars article, it doesn't even sound like the DMCA notice was a valid one (or at least none of the important informaiton from it was passed to Ars).
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abc gum, 29 Apr 2011 @ 6:14am

Re:
So, I assume that you are in favor of the one sided nuke em from orbit approach to DMCA notice response.

It is also assumed that you do not use hosting other than your own and therefore have not experienced the false take down scenario. I suppose ones opinion can be greatly influenced by their experiences.
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Josh in CharlotteNC (profile), 29 Apr 2011 @ 7:21am

Re: don't rely on others
Drive all traffic to your own website that you have more control over.

And your website is hosted where? A hosting company. Even if you own your own servers, traffic is still going to their data center.

So... build your own data center? Still need an ISP.

Your own ISP? Well, your domain will still be under control of one of the top-level providers like Verisign. And no-one would ever try to shut down and seize an entire domain... oh, wait.
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FUDbuster (profile), 29 Apr 2011 @ 10:06am

Re: Re:
If facebook is being dumb, blame facebook. I thought Mike hated blaming third parties.
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FUDbuster (profile), 29 Apr 2011 @ 10:12am

Re: Re:
What's there to say? Copyright terms are too long and copyright inures automatically when a work is created. We'd probably be better off if that were different. Take it up with Congress.
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PaulT (profile), 29 Apr 2011 @ 10:21am

Re: Re: Re:
"I thought Mike hated blaming third parties."

Maybe he does, however, the person you're responding to is not Mike. Believe it or not, every individual here has individual opinions.

Do you have any way of addressing his other points?
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FUDbuster (profile), 29 Apr 2011 @ 10:41am

Re: Re: Re: Re:
I said what I had to say. Any system can be abused. You could make that argument about anything. People will always act in bad faith. People will always overreact. Facebook is being dumb. Blame Facebook.
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PaulT (profile), 29 Apr 2011 @ 10:53am

Re: Re: Re: Re: Re:
Indeed, and Facebook will be blamed for their actions. However, in doing so, you cannot ignore the overreaching attacks to protect copyright and the effects these have on hosts. Facebook didn't make their decisions in a vacuum, and it's right to criticise those wider issues while criticising the company themselves.

But, you seem to have ignored both these points and other points raised in the AC's post in favour of a pithy comment you can use to attack Mike in a sideways manner. Pathetic.
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FUDbuster (profile), 29 Apr 2011 @ 11:11am

Re: Re: Re: Re: Re: Re:
Of course Facebook didn't make the decision in a vacuum. I just don't understand the hyper-focus on the negative without any explanation of scope or context. It's whining. What percentage of takedown notices are abusive? What's the bigger picture? It's just another hit piece on IP in general.
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PaulT (profile), 29 Apr 2011 @ 12:11pm

Re: Re: Re: Re: Re: Re: Re:
So, you're going to continue to ignore the points raised by the person you were responding to and focus on the article itself? Fine.

"I just don't understand the hyper-focus on the negative without any explanation of scope or context."

A fairly sizeable website had a chunk of its online presence removed, without warning or explanation, solely based on an accusation and have thus far been unable to get that presence restored. This has happened multiple times to multiple people with no regard for the money and community they lose from this action, nor are they offered any recourse other than expensive lawsuits. From the ARS article, it doesn't seem that they've even been advised which content was in question, meaning that they can't put safeguards in place to prevent a repeat scenario.

Tell me, where is the positive spin you can put onto that story? I can't see anything remotely positive, especially as there's no indication as to what the objection was in the first place. The scope and focus are rather well explained in the articles. We don't know the exact number of false or abusive takedowns, but the fact that something like this is possible for well funded media organisations hardly bodes well for small businesses or individuals.

As for the context, that's what I'm trying to point out. Facebook's actions are part of a growing trend to protect the IP of large corporations with no regard either for the rights nor the wishes of individuals. Content (some of which will be the IP of the customer) is being remove with no prior warning and no consultation.

"It's just another hit piece on IP in general."

We must be reading different articles. The one I'm looking at makes no comment on IP in general, but is highly critical of the increasingly common and draconian methods used to protect it. I'll repeat - the criticism is not of IP, but the ways in which it's "protected" and the unreasonable methods used to do so. Very different points, which if you're actually interested in disseminating FUD, you'd do well to keep separate.
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Chargone (profile), 30 Apr 2011 @ 7:21pm

Re:
what's the definition of perjury? given that these things are typically settled out of court by the wrongfully accused person realising they can't afford to fight it and just paying up/folding before it even gets into the official system?
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Anonymous Coward, 1 May 2011 @ 11:50pm

Re: Re: Re:
So then he's found a good reason to slam IP, or at least our current IP laws. It's not desperation, it's reality.

I blame the corporations that want these laws. These laws were passed because those corporations wanted them. I also blame Congress.
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Anonymous Coward, 2 May 2011 @ 1:39pm

Re:
"Not sure the issue needs to be stretched out as a condemnation of IP in general."

No one is entitled to having a government granting them a monopoly. To possess such a monopoly, the burden is on those who want these monopolies to justify them and to justify the many social problems that these monopolies create (and Techdirt is pointing out some of those problems). These monopolies should be abolished because

A: They cause many social problems

B: The burden of justifying their existence hasn't been met. In fact, it hasn't even come close.

The burden is to show that the public (not the monopolists) benefit from these laws. So far such a thing hasn't been proven.
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Adult Party Plans, 11 Oct 2011 @ 7:38pm

What is the meaning of DMCA?
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Joe Harkins (profile), 2 Jun 2012 @ 6:10pm

Re: Re:
Actually the word is "thieves." A thief is one who takes or uses someone else's property without permission. The right to say who may make a copy of what I create is my property by the law. The issue here is not the original; it is the RIGHT to control copies. It says so right there in the USA Constitution and in every legal ruling based on that law in the past couple hundred years. Your replacing the words of the law with what you want it to say does not change the law. You rewriting the language of the law to exclude the right to control copies is nonsense. You attempt to twist my words about the right to control the making of copies and limit it to originals is sophistry.

Aside from that juvenile foolishness, you are OT. The topic is the claim that bogus takedown are a consequence of the DCMA. That too is sophistry.

The Turkey-Lurkey anecdotes here are about people who are sending out takedown notices that have zero standing under the DCMA. Respect for the DCMA is the solution, not the problem.
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Joe Harkins (profile), 3 Jun 2012 @ 3:04am

Re: Re:
I am not in favor of the words you are putting in my mouth. There is no "one sided nuke 'em" to a DMCA notice. The scenario being complained of here is not a DMCA take down.

I am not in favor of anyone sending an email claiming copyright infringement and demanding take down for that. I am not in favor of anyone taking down anything in response to an email claiming copyright infringement. The DMCA does not support either the complaint or the response.

I am in favor of the take down provisions of the DMCA. Have you ever actually read them?

Read the law. Here are the rules that any responsible hosting service understands and will follow. http://buildinghosting.com/legal/
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adult toys, 13 Nov 2012 @ 1:49am

Re:
Digital Millennium Copyright Act is the meaning of DMCA
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