GoDaddy Takes Down Entire Site Of Copyright Attorney/Photographer Over Bogus DMCA Claim
from the life-under-SOPA dept
As much as I appreciate and highlight the importance of the DMCA's safe harbors, there remain many troubling parts of the law. The notice and takedown process is particularly questionable, in that it involves shooting first and asking questions later. When we're dealing with a system that gets so many false notices, taking down first seems kind of crazy. David Canton points us to the news of a copyright lawyer and photographer, who had her entire site shut down by GoDaddy (of course), after it received a single, totally bogus, DMCA claim. Apparently someone claimed copyright on a photograph that the blogger, Carolyn Wright, had taken herself. The DMCA claim was just wrong. And while GoDaddy is required to remove the specific infringing content if it wishes to retain safe harbor protections, it appears to have gone way beyond that in shutting the entire site down. Thankfully the situation was resolved when Wright reached out to the person sending the letter, who apologized and withdrew the claim.That said, get ready for this kind of story becoming a lot more common if SOPA or PROTECT IP becomes law. Totally bogus takedowns happen all the time under the DMCA but are usually (though not in this case, apparently) limited specifically to the infringing content. Under SOPA you'll see a lot more drastic action, cutting off sites from ad revenue or payment processing -- with no requirement to turn them back on, even if a counternotice is filed. This is exactly why a private "notice" provision in SOPA is so scary.
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Filed Under: copyright, dmca, photo, takedown
Companies: godaddy
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Perhaps we were all wrong... the real driving force behind all the shitty "regulate teh internets" laws isn't the hollywood cartels.
No, I believe it is the law schools pushing all this crappy legislation so they can boost their enrollments.
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It isn't the pursuit of profits that is the problem...it is the mindless pursuit of profits at all costs that is the problem. Getting money for what you do is fine. It is when you do so at the loss of goodwill and reason that things go terribly wrong. Especially when you pursue money that doesn't rightly belong to you (such as in this case where someone claimed something that wasn't theirs.) Also, the entitlement mentality and the unreasonably long state-granted monopolies are a problem too...
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False claims
3 false claims anywhere and the person or company should never be able to make any more claims, EVER!!
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Nothing could possibly go wrong with that idea right? As long as you're not breaking any copyright laws?
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Frankly, the word "bogus" implies to me the absence of good faith.
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When the dust settles and it's realized that you do not, in fact, have any copyright claim and I did, indeed, take the photo, my photo/site is reinstated, after who knows how many hours of downtime (and possible lost income.)
In the above scenario, I do not think you have any "good faith" claim over said photograph. To me, it's a malicious act (sending the DMCA notice) because I'm sure you know damn well you have no claim over the photo in question.
I want to know why there's no penalty for sending these "bogus" claims. Once the powers that be determine that it is, indeed, bogus, and you've caused me potential lost income (and yes, I think I might use MAFIAA-math to determine actual losses), I want to be compensated AND have you tossed off the internet/sent to a gulag for bogus DMCA filing.
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Re: Re: Re: Re: Alt
You said: "I'm sure you know damn well you have no claim over the photo in question." But isn't that the same as saying that YouTube, et al, should 'know damn well' that something is infringing?
There can be a good faith claim stemming from a simple mistake, in either direction.
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Notice and takedown is the problem, a scorched earth policy. It might work more efficiently for everyone if notice and notice were employed.
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Sorry - what?!?!
No, it's not even remotely the same - unless you're being intellectually dishonest.
You are saying that if you are supposed to know what you own, then it's perfectly reasonable for someone else to know what you own. And it's patently absurd.
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You are an idiot. The person claiming copy protections over a photo is in a better position to know if he has privileges over that photo than does an intermediary service provider.
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and the person who initiated the takedown ought to be required to compensate you for all of those damages and the statutory maximum should be no less than the statutory maximum infringement damages.
"But those damages are speculative in nature" you say. People should only be required to receive compensation on provable and tangible damages, not on alleged damages that occurred from downtime.
Infringement damages are at least as speculative just as well.
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Likewise, the DMCA shouldn't give intellectual privilege holders more leeway when asserting their privileges against people's rights than what it gives to infringers and others who break the law. Why should the DMCA give more leeway to privilege holders than what the law gives everyone else? It should not and, to the extent that it does, the law needs to be changed.
Everyone else has the substantial burden of ensuring that infringement does not occur or else they can face severe penalties. Yet the much lessor burden to ensure that takedowns are valid and the penalties for sending invalid takedowns are relatively low. The law needs to correct this.
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Frankly, the word "bogus" implies to me the absence of good faith.
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Frankly, the word "bogus" implies to me the absence of good faith.
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Naturally, when you make a claim, you haven't checked whether or not it is infringing, it's faith based and therefore cannot be bogus as long as you make a clueless claim in good faith.
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Whether the claim was bogus or not, it shouldn't be that easy to get a site taken offline.
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Not necessarily. I've had the same thing happen just hitting the button once...a blank page loaded, then the "you have successfully submitted your comment" page loaded after a few seconds. I think what sometimes happens (it happens with other sites too,) is that the website gets a little overwhelmed and when a user hits the submit button during these times, something happens (either a timeout with the user or with the website) and the same message gets pushed twice. However, in this case, since it appeared three times, I think you're right.
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In this instance when I hit back I got the screen saying my comment had been submitted, but when I then hit back I got a blank screen. I believe I hit refresh a couple of times before I finally got the prior page displayed. When I then hit refresh...three comments were on the site.
Strange...
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I bet that "someone" would think twice if the penalties were as stiff for false or "wrong" allegations, as they were for any actual infringement!
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giving Daddy the boot
I like the part in GoDaddys terms of service that they will keep a site down until ordered to put it back - your counter notice means nothing. AND you have to agree to litigate in Arizona.
byebye GoDaddy...
oh, and the site is still down.
so step one if you are already under GoDaddy, move away. May I suggest DirectNIC?
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Re: giving Daddy the boot
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Re: giving Daddy the boot
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Of course bands still sign with the major labels, and their depredations have been exponentially more well publicized.
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False Claims
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Re: False Claims
There, FTFY. :)
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"this kind of story becoming a lot more common if"
HURRY UP SOPA!
Actually, the "kind of story" we're gettng more of is Mike howling like a rabid dog over his imagination, while utterly silent on the actual problem of rampant piracy.
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Re: "this kind of story becoming a lot more common if"
Do you setup these straw men for folks to knock down out of some sense of fun? Do you feel like a puppet master? I'm really confused here as to how spouting such transparent drivel is worthwhile in any way?
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Re: Re: "this kind of story becoming a lot more common if"
I think it's obvious out_of_the_blue is a shut-in who gets little to no human contact--rather than belittling or arguing with this poor individual, we need to offer him/her our pity.
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Re: "this kind of story becoming a lot more common if"
During this period of massive piracy
There are more movies being released than at any other time, with box office records being broken, along with dvd and bluray sales records ala Avatar.
There is more music being created and more musicians making a living than ever before, some very successfully indeed, whether they went the normal gigging route or just covered copyrighted content on youtube ala Justin Bieber, to make their name and attract the moneymaking interest of the labels.
More novels and stories being written and more people making a living from writing than ever before, some utilising the internet to distribute and the most successful finding themselves making very large sums of money and people who were picked up by publishers declining to stay with them.
So what exactly is the problem with piracy?
It's effects seem to range from roughly neutral overall to specifically beneficial in certain circumstances where increases in sales seem to have been definitively tied to "rampant piracy" a la "go the f*&k to sleep"
If piracy is a problem it's keeping the problem very well hidden indeed.
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Re: Re: "this kind of story becoming a lot more common if"
??? I've got nothing
I wish I was doing as 'poorly' and being 'wiped out' as much as the **AA exec's... I mean is piracy really the problem or are the $80 million dollar exec compensation packages ruining the 'plastic disk' selling business (because the movie and music business has always been and still is doing great from everything we see)....
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This person should never have had to have their site removed. The proper way to have handled this was for the alleged copyright owner to go through the process of proving their copyright before the site was removed.
What if the lady had been on vacation for a week, and her entire website was taken down during that time - is it acceptable that all of her customers and potential customers would not have been able to access resources and information presented on her website during that time?
The answer is NO - and if you believe otherwise, you're lying to yourself and the rest of us.
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What about the "piracy" by the person who filed the fraudulent claim, son?
Does the word "copyfraud" have any meaning for you, boy?
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Re: "this kind of story becoming a lot more common if"
That's kind of the point. If the person making the false claim had maintained it, Wright would have had no recourse. If a system can only NOT persecute the innocent if you naively assume it will never be abused, and that all disagreements will be settled with smiles and handshakes, then it is a bad system. Do you really not see that?
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Hence, there should be some sort of negligence penalty for a negligent DMCA claim, say, treble economic damages, with a minimum of $5000.
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Hmmmmm
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Re: Hmmmmm
In that case, GoDaddy will do one or more of the following:
a) ignore complaints
b) pass complaints on to the spammer so that they can retaliate
c) deny any wrongdoing
d) repeatedly ask for evidence they already have
e) send a shill into anti-spam forums in an attempt to placate victims
f) tell the press "we take the spam problem seriously"
g) assist the spammer in being better at avoiding detection
h) belatedly, slowly turn off a few of spammer's domains in order to support their claim that they're taking "effective action"
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Under Penalty of Perjury
Where are the perjury charges against false claimants?
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Re: Under Penalty of Perjury
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Good Registrars?
Any others?
Who does TechDirt use?... ok I'm too lazy to go look it up.
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Re: Good Registrars?
Here is a list where you have a lot of registrars and their country of incorporation.
http://icmregistry.com/registrars/
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It only goes to prove
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SOPA is pure bullshit. Webmasters will use offshore advertiser and payment processing... simple as that.
And at the moment SOPA passes, I will transfer the few domains I have at godaddy to another registrar.
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They seem to think that the only companies who can process payments or server ads are American.
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So I am asking the Techdirt community what would be my best course of action if I did get a DMCA notice? What would you do if you were in my shoes? GoDaddy has tons of cash to throw at lawyers and could have fought for this customer, I can not. It seems my only course of action involves loosing that client (one way or another) or risk my business. Two loose - loose options.
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You may even give them the option. Do they want the entire site taken down so their audience doesn't have to mess with a broken site or would they prefer just the page in question?
Either way, you need to define these things beforehand to avoid liability from them.
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But that's just me, and I don't have that many sites that I host.
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If you don't take it down automatically you personally may be liable for $150k per infringement. I wouldn't take that risk.
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The easiest way to comply with the DMCA is to just takedown everything and put it back when a counter noticed is filled, trying to take out only the infringement could lead to liability if you ever found yourself in a place where you rented out space and broke in into that space to do something, I don't think judges would see it as ok to break into somebody else home to search for drugs without law enforcement involved.
It is expensive to inform others why something was accepted or rejected, or the trouble of explaining how the DMCA works to both parties issuing costly replies to both parties explaining what is being done and what will happen, for example if somebody issued a DMCA you would pay someone to reply to them saying that the content was brought down and you are waiting to see if a counter noticed will be filled in which case the content will go back up, to the other party you would send a notice saying that their content was the target of a DMCA, and what he could do about it, you can automate that, but it won't catch defective DMCA's or defective counter-notices.
Then you would have to deal with those people who don't care who's responsibility it is and sue everyone, at which point you will need to file a motion to dismiss which will cost you anyway. It seems simple until one realizes that thousands of DMCA's can target one service provider a month and that a couple of people just won't be able to do that job.
Now GoDaddy is not full of idiots, their legal counsel probably knows that the people with most interest in starting a crap fight is the content owner, those are very litigious people the others probably don't care so they just piss off the customers who will not want to do a lot of work and go to courts because they don't have that much incentive to do so, but they have an incentive to find other alternatives, probably in other countries.
Just had an idea for a business LoL
DMCA processor for service providers :)
Seriously though, small players most probably will start closing their doors.
This is exactly why the DMCA was a bad idea and it is a bad idea, but apparently that 1% of business can just harm the other 99% of business and get away with it.
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Let the punishment fit the crime.
She has been on TechDirt before.
She was the one saying Google was forcing her client to put the notice on Chilling Effects or not get the material taken down.
http://www.techdirt.com/articles/20110831/02573715750/can-someone-block-google-passing-alon g-dmca-to-chillingeffects.shtml
This is what we call a callback.
So I am guessing her radical approach to panic first, figure out what was actually said second might have earned her a fan.
We shut her up in 3 posts, because she refused to back up the claims she was making about what "really" happened to her client.
Given her questionable understanding of DMCA notices and the law, I would not be surprised she sent someone a nastygram that backfired.
I remember digging into the "evil things" Google was doing to her poor client, He didn't want people to know he was removing a photo someone was using on Google+.
I stick with the original protip assessment -
Protip - Never take legal advice from a lawyer who pimps her photo sales on her website?
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Yup -- turn-about is fair play. When will the copyright attorneys finally realize that the DMCA is essentially a low-yield nuclear weapon (where as SOPA is far, far more deadly.) Mutually Assured Destruction worked when we had two superpowers that were absolutely afraid to use them, but not so well when every terrorist cell wants them. Same with the DMCA -- it falls apart when anyone can use DMCA without any sort of fact-checking -- and those who can will use the DMCA in malice because there is absolutely no protections against doing so.
As they say in the "good" book -- "those who live by the sword will die by the sword."
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So if there really was infringement, the damages can be huge. Yet he sends bogus takedowns for no good reason and what were the legal consequences here? Absolutely nothing. He has very little reason not to file bogus takedowns and there is little incentive for him to ensure that his takedowns are valid.
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Retching out
I'm afraid that my inclination would be to "reach out" to both the perpetrator and hosting company with the biggest sledge-hammer I could find.
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happen to me
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