No Punishment For Bogus DMCA Notices If Service Provider Doesn't Take Down The Content

from the too-bad dept

Tue, May 3rd 2011 10:19pm — Mike Masnick

One of the issues with the DMCA is that there's very little incentive to avoid sending bogus DMCA notices. There is 512(f), which says that if you misrepresent that content is infringing, you are liable for damages, but it's rarely used. And, now it's been limited further in a court ruling. Earlier this year, we wrote about a silly copyright fight concerning virtual horses and virtual bunnies in Second Life, with one company claiming another company copied its "breedable" virtual animals and that was infringement. It issued a takedown. After it was determined that the copyright claim was ridiculous (there was no direct copying), the company who was on the receiving end tried to claim that there was a 512(f) violation in the original takedown. However, the court dismissed that claim because Second Life never complied with the takedown, saying:

limiting suits for damages to those caused by an actual takedown is a less effective deterrent than allowing suits based merely on the filing of a false Takedown Notification. But the statute is unambiguous in entitling an alleged infringer to damages caused �as the result of the service provider . . . removing or disabling access to the material"

In other words, if the service provider doesn't follow through on the takedown, there's no punishment for filing a bogus DMCA notice. Too bad.

Separately, I hadn't realized just how ridiculous the DMCA notice was. It didn't just ask for a takedown of the virtual animals itself, but of the food for the animals, in order to make the virtual animals die. This snippet from the ruling struck me as amusing:

The Notification sought, among other things, the removal from Second Life of Amaretto's virtual "food" and "water." Had the takedown occurred, the virtual horses would have "died" from "starvation" and/or "thirst" within 72 hours.

Yup. Using copyright to "starve" to "death" virtual animals. I'm sure that's exactly what our Founding Fathers were thinking about when they wrote the Constitution.

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Filed Under: copyright, dmca, punishment, takedown

34 Comments

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fogbugzd (profile), 3 May 2011 @ 10:31pm

If they had let the virtual animals starve, would VSPCA (Virtual Society for Prevention of Cruelty to Animals) and vPITA have gone after them?
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Anonymous Coward, 3 May 2011 @ 10:53pm

Think of the virtual kittens!!
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Anonymous Coward, 3 May 2011 @ 10:59pm

Re:
Maybe the prevention of cruelty to virtual animals.

I can't help but think, maybe we ourselves are in a virtual world running on some kind of computer that itself is in a virtual world running on another computer. It might help explain why our reality is more ridiculous than fiction. Maybe our virtual world is meant to be some sort of comical parody designed for entertainment purposes.
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Anonymous Coward, 3 May 2011 @ 11:00pm

Re:
Every time someone infringes on IP, a virtual kitten dies.
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LDoBe, 3 May 2011 @ 11:11pm

Turtles
This reminds me of the the old lady who didn't believe the earth was spherical.

It's flat, and resting on the back of an enormous turtle!

The physicist asked: but what does the turtle stand on?

The stubborn lady replied: oh you think your college education makes you clever to ask that question, but I've got you now! It's turtles all the way down!
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Anonymous Coward, 3 May 2011 @ 11:39pm

Anywho, I kinda have to agree with this ruling. There shouldn't be punishment for non - existing damages.

On the other hand, perhaps the damages could be the legal fees and to that end the plaintiffs could reasonably be punished. Perhaps even punitive legal fee damages.

Not that I agree that infringement itself should be punished or carry such a huge punishment for potential damages.
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Anonymous Coward, 3 May 2011 @ 11:40pm

Re:
(the point is that no one should be punished for the potential damages that could have resulted if the take down occurred. Damages, both actual and punitive, should be based on actual damages, such as the actual damages caused by legal fees).
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WysiWyg (profile), 4 May 2011 @ 1:17am

What about SL?
My first thought was that Second Life perhaps had a case? They probably had to spend some manhours on dealing with this, could they get that money back?
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G Thompson (profile), 4 May 2011 @ 1:50am

Since they are virtual animals and the DMCA tried to destroy by virtually unethical means those same virtual animals wouldn't damages be the virtual heartbreak those owners had thinking their virtual animals were going to leave the nominated virtual plane of existence for another better place in the virtual scheme of things?

Or am I being virtually crazy?

*shrugs and hops on his virtual unicorn to go play in the virtual fields of Plato's cave where rainbows live*
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Any Mouse (profile), 4 May 2011 @ 2:00am

I only wonder if one could use a countersuit of fraud to seek damages to one's reputation, and/or court fees. of course, you would have to prove that the take down was willfully fraudulent, but still...
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Anonymous Coward, 4 May 2011 @ 2:37am

Re:
Maybe all awarded legal damages should be paid in virtual money from now on.
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Anonymous Coward, 4 May 2011 @ 2:39am

Re: Re:
You know what I don't understand is why don't these games use something like bitcoin for their virtual currency.

(This idea is non-patentable)
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Anonymous Coward, 4 May 2011 @ 2:42am

Re:
"Or am I being virtually crazy? "

Maybe you need to see a virtual psychologist. Preferably one with a virtual Ph.D. in the field and virtually 5 years of experience.
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Anonymous Coward, 4 May 2011 @ 2:44am

Re: Re:
Think about it. Virtual damages for imaginary rights.
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NotMyRealName (profile), 4 May 2011 @ 3:06am

Re: Re:
http://www.simulation-argument.com/
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Capitalist Lion Tamer (profile), 4 May 2011 @ 4:56am

Hmmm.
Maybe there's money to be made as a Second Lawyer. I would imagine there's no need to acquire an actual degree.
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abc gum, 4 May 2011 @ 5:10am

Re:
"wonder if one could use a countersuit of fraud "

Yeah, why are they limited to what the DMCA says? AFAIK the scope of fraud related laws goes well beyond the realm of the DMCA and friends.
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NullOp, 4 May 2011 @ 5:38am

Case
So, if I send out a million bogus invoices to companies throughout the U.S. I'm OK as long as no one pays, right? Does anyone else have the feeling our legal system is made up of people dumber than a bag of hinges?
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Berenerd (profile), 4 May 2011 @ 6:05am

So why is it there RIAA and them get money from time to time?
If there is no provable damages...they shouldn't get paid? right?
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Jay (profile), 4 May 2011 @ 6:11am

The conclusion
So if it makes no sense to follow the takedown...

Does this mean that if Google stopped them, it's still not liable? Other than the Viacom lawsuit, I would think if the ISPs or even Google worked on exposing the DMCA as frivolous, it would certainly undermine the process.
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The eejit (profile), 4 May 2011 @ 6:20am

Re: Case
No, it gets sillier - you're allowed to defraud people, so long as they know you're defrauding them.
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Chargone (profile), 4 May 2011 @ 6:39am

Re: Re: Case
mind you, is it fraud if they Know about it? attempted fraud, maybe...
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Anonymous Coward, 4 May 2011 @ 6:50am

"After it was determined that the copyright claim was ridiculous (there was no direct copying), the company who was on the receiving end tried to claim that there was a 512(f) violation in the original takedown."

Where's your link showing that the copyright claim was ridiculous and there was no direct copying? Oh, right - you don't have one. The case is still in progress. You really should make it more clear when a statement is just your opinion rather than facts.
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Keith, 4 May 2011 @ 7:30am

Re: Re:
No, our world can't be on a virtual computer, because our bunnies and horses still exist.
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The eejit (profile), 4 May 2011 @ 7:55am

Re: Re:
I'll virtually do it for virtually nothing for five minutes. Then there will be a virtual tier which, unless you pay, I'll be forced to make you virtually sit through the virtual Twilight saga virtually backwards.
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Anonymous Coward, 4 May 2011 @ 7:56am

Re:
"Where's your link showing that the copyright claim was ridiculous "

So you don't think

"The Notification sought, among other things, the removal from Second Life of Amaretto's virtual "food" and "water." Had the takedown occurred, the virtual horses would have "died" from "starvation" and/or "thirst" within 72 hours. "

is ridiculous?

"and there was no direct copying?"

One had to do with horses, the other had to do with bunnies. no direct copying there. Maybe indirect copying, but at least not any direct copying.

"The court interpreted Ozimals' position as asserting copyright over software functionality (clearly one of Ozimals' core concerns), and the court rightly dismisses the copyright merit of that position. "

http://blog.ericgoldman.org/archives/2011/01/second_life_ord.htm
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Chris Rhodes (profile), 4 May 2011 @ 8:51am

Re: Re:
Man, I wished they applied the same logic to all IP cases.

"You say he downloaded a song? What are the actual damages on that? Defendant, you owe the RIAA one dollar."
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Hugh Mann (profile), 4 May 2011 @ 10:01am

Can Second Life characters eat the virtual meat?
Circle of (second) life...

HM
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Anonymous Coward, 4 May 2011 @ 10:27am

Re: Can Second Life characters eat the virtual meat?
Circle of lawyers.
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AdamBv1 (profile), 4 May 2011 @ 2:07pm

Re: Re:
I do like the idea of being able to recoupe legal fees and such when hit with a bogus takedown. If companies had to face possibly paying the defendants legal fees maybe we could get some chilling effects going in the other direction where they actually pause and think for a second before firing off a takedown.
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Anonymous Coward, 4 May 2011 @ 3:04pm

Re: Re: Re:
I agree.
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G Thompson (profile), 5 May 2011 @ 12:58am

Re: Re: Re:
They say that listening to rock & roll records backwards is hearing the Satanic voices of vile evilness ie:Awesome.

On that assumption, watching Twilight backwards might be like watching the BEST FILM EVER!

;)
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Anonymous Coward, 5 May 2011 @ 1:06pm

Re:
I kinda have to agree with this ruling. There shouldn't be punishment for non - existing damages.

I agree - we should apply this wonderful ruling to all cases.

If someone tries to shoplift something but gets caught before they leave the store, they should be immediately let go. The store didn't suffer any *actual* loss, so what's the problem?

If I deliberately shoot at someone and miss, well I shouldn't be arrested.. I obviously didn't do anything wrong because the target wasn't injured! I mean, "attempted murder" - what is that? Do they give a Nobel prize for "attempted chemistry"?

It's so refreshing to see a judge these days making a right call!
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jacky, 19 Oct 2011 @ 11:37pm

hi
How is a download?
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